MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                                        Jun 20 2018, 7:18 am

this Memorandum Decision shall not be                                             CLERK
regarded as precedent or cited before any                                     Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
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
Don R. Hostetler                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Aaron T. Craft
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re Termination of the Parent-                          June 20, 2018
Child Relationship of                                     Court of Appeals Case No.
                                                          18A-JT-27
H.M. (Minor Child),
                                                          Appeal from the Marion Superior
and                                                       Court Juvenile Division
A.M. (Mother),                                            The Honorable Marilyn Moores,
Appellant-Respondent,                                     Judge
                                                          The Honorable Scott Stowers,
        v.                                                Magistrate
                                                          Trial Court Cause No.
Indiana Department of Child                               49D09-1702-JT-211
Services, et al.
Appellee-Petitioner,




Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018                  Page 1 of 14
      Altice, Judge.


                                                  Case Summary


[1]   A.M. (Mother) appeals following the termination of her parental rights to her

      daughter, H.M. (Child). On appeal, Mother argues that the evidence was

      insufficient to support the termination of her rights.


[2]   We affirm.


                                         Facts & Procedural History


[3]   Child was born on April 4, 2014, to Mother and J.F. (Father).1 During the

      summer of 2015, Mother and Child lived with Mother’s boyfriend, D.

      (Boyfriend D), who sold drugs out of the home. In July 2015, Mother went

      through an informal adjustment with the Department of Child Services (DCS),

      agreeing to move Child to maternal aunt’s home and keep Child away from

      Boyfriend D.’s home. Shortly thereafter, Mother took Child back to Boyfriend

      D’s house, which was raided by police while they were there.


[4]   As a result, DCS removed Child from Mother’s care, and on July 30, 2015,

      filed a child in need of services (CHINS) petition. Around that same time,

      Mother tested positive for methamphetamine, marijuana, and cocaine. On

      November 18, 2015, the trial court found Child to be a CHINS based on




      1
        Father consented to Child’s adoption and does not participate in this appeal. Thus, our recitation of the
      facts is limited to those pertinent to the termination of Mother’s parental rights.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018                       Page 2 of 14
      Mother’s admission that she needed assistance “in providing a stable home

      environment free from substance abuse.” Exhibits at 6. The trial court entered a

      parental participation order requiring Mother to participate in home based

      therapy, home based case management, random drug screens, and intensive

      out-patient therapy (IOP) for substance abuse and follow all recommendations.


[5]   Mother has been a drug addict since at least the summer of 2015. She prefers

      smoking methamphetamine, but also uses or has used marijuana,

      benzodiazepines, ecstasy (Molly), and synthetic mushrooms. Mother’s drug

      use is complicated by her mental health disorders, such as substance abuse

      disorder, anxiety, and post-traumatic stress disorder. Throughout the course of

      the CHINS proceedings, Mother used methamphetamines “[s]ometimes daily,

      sometimes just weekly” to help her deal with “high anxiety and depression.”

      Transcript at 74. Mother explained that methamphetamine helps her “to

      basically block out memories and thoughts or emotions pretty much for days.”

      Id. at 90.


[6]   Since the start of the CHINS proceedings, Mother has had a couple of brief

      periods of sobriety, but she has relapsed each time. In March 2016, Mother

      spent five days in a detox program at Harbor Lights and then started IOP at

      Families First. Mother followed that program up with a program focused on

      relapse prevention. She also participated in a domestic violence program.

      Mother did not complete these programs because she relapsed after Boyfriend

      D died.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 3 of 14
[7]   By late summer of 2016 Mother entered a substance abuse treatment center at

      Volunteers of America (VOA) and stayed there for thirty-one days. Mother left

      because she did not think she “was taking the most out of the program.” Id. at

      76. After Mother relapsed, she re-enrolled in the VOA program on December

      26, 2016, and stayed for twenty-eight days. At the end of this second stay,

      Mother earned a certificate of completion, which was qualified because she did

      not meet the program requirements for class attendance.


[8]   Mother relapsed yet again after the permanency plan was changed from

      reunification to adoption in February 2017. In April 2017, DCS provided

      Mother with a referral to the Tara Treatment Center (Tara) for twenty-one

      days. Mother completed the program with some difficulty, and a counselor at

      Tara noted that Mother’s “prognosis to remain sober is guarded.” Exhibits at

      49. The counselor also noted that it “was difficult to assess [Mother’s] level of

      motivation and progress due to minimal participation and not completing her

      assignments in a timely manner.” Id. Upon her release, Mother did not begin

      IOP, but instead entered a program with Seeds of Hope, where she worked with

      a therapist who specialized in domestic violence and trauma as well as relapse

      prevention. Mother was discharged from Seeds of Hope after she learned she

      was pregnant. Mother relapsed again after the termination of her pregnancy

      and a domestic violence incident with her then-boyfriend, Boyfriend J. During

      the termination fact-finding hearing, Mother admitted that she used

      methamphetamine four days prior.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 4 of 14
[9]    Mother’s participation in other services was spotty. Although Mother initially

       struggled with accountability and time management while in a treatment

       facility, her behaviors generally improved and she became attentive and

       engaged in the programs. Outside of the highly structured environment of a

       treatment facility, however, Mother’s participation in services was inconsistent.

       Mother admitted that she has not demonstrated an ability to care for Child.

       Although her interactions with Child during visits were generally positive,

       Mother would often cancel visits due to her drug use because she did not want

       Child to see her under the influence. While Mother was at Tara, she stopped

       visits with Child because of the distance. Mother has not seen Child since

       August 21, 2017. Due to Mother’s inconsistent visitation and resulting negative

       impact on Child, Mother’s visitation with Child was suspended on August 24,

       2017.


[10]   In addition to her drug addiction, Mother has a history of domestic violence

       and has been involved in two abusive relationships. When DCS first became

       involved, Mother and Child were living with Boyfriend D, a drug dealer, who

       was abusive toward Mother. After Child was removed from Mother’s care, she

       attended domestic violence classes, but did not complete the program because

       she relapsed after the death of Boyfriend D, with whom she was still

       romantically involved. Mother next became involved with Boyfriend J, who

       both physically and mentally abused Mother. Mother lived with Boyfriend J

       until July 2017, when she obtained a protective order against him. Boyfriend

       J’s abusive actions caused Mother to miss several visits with Child.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 5 of 14
[11]   Mother’s employment during the proceedings has been both brief and sporadic.

       In the year before the fact-finding hearing, Mother had been employed at

       Toyota, working on an assembly line, and also at a fire/water restoration

       company. Mother was not employed at the time of the hearing, but testified

       that if Child were returned to her care that she planned to find work with the

       restoration company or through a temporary service.


[12]   At the time of the fact-finding hearing, Mother was living with her

       grandmother, with whom she has a loving relationship. Mother’s grandmother,

       however, has significant health concerns that make it difficult for her to be a

       caregiver. Although there are no problems with the house itself, the concern

       remains Mother’s drug use and those with whom Mother associates.


[13]   Child was removed from Mother’s care when she was sixteen months old. For

       the first year, Child was shuffled among different foster placements. Child has

       been in her current placement with pre-adoptive foster parents since October

       2016. The pre-adoptive foster home provides Child with a loving, stable, and

       supportive environment, and Child is well bonded with the pre-adoptive foster

       parents. The pre-adoptive foster parents are open to and supportive of

       including Child’s great-grandmother, to whom Child is bonded and has

       expressed a desire to see, in Child’s life.


[14]   Angela Hardy, a home-based therapist, was assigned to work with Child in

       April 2017 after Child displayed negative and fearful behaviors, including

       accidents at school, nightmares, and feelings of separation anxiety from her


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 6 of 14
       foster parents at night. Hardy has worked with Child twice a week and noted

       that Child has a strong desire to please and a need for approval, which she

       attributes to Child’s feelings of insecurity brought about by the situation. Hardy

       noted that Child demonstrated marked improvement and stability after visits

       with Mother ceased—she had fewer accidents, was “happier” and more

       “carefree childlike.” Transcript at 49. In Hardy’s opinion, termination of

       Mother’s parental rights is in Child’s best interest as Child needs permanency

       and stability.


[15]   Kay Ulery has been Child’s Guardian ad Litem (GAL) for more than two years

       and has visited with Child on a monthly basis. Ulery has significant concerns

       about Mother’s fitness to parent in light of Mother’s inconsistent participation

       in services, unstable housing and employment situations, repeated cancellations

       of visits, and her continuing drug use. Ulery testified that Child’s best interests

       would be served by placement in a stable, permanent environment and that she

       did not believe Child would benefit by giving Mother additional time to

       complete services. Zack Inman became the family case manager (FCM) only a

       month before the fact-finding hearing, but he reviewed the file and spoke with

       the prior case FCM and service providers. FCM Inman believed that Mother

       had failed to benefit from services as evidenced by the fact that she continues to

       struggle with drug addiction and lacks a stable home environment. FCM

       Inman also testified that giving Mother additional time would only delay the

       permanency that Child needs. Both Ulery and FCM Inman testified that




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 7 of 14
       Child’s best interests would be served by termination of Mother’s parental rights

       and adoption by her foster parents.


[16]   DCS filed a petition to terminate Mother’s parental rights on February 20,

       2017. Fact-finding hearings on the termination petition were held on October

       3, 10, and 25, 2017. On December 12, 2017, the trial court entered an order

       terminating Mother’s parental rights to Child. Mother now appeals.

       Additional facts will be provided as necessary.


                                            Discussion & Decision


[17]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

       265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

       and reasonable inferences most favorable to the judgment. Id. In deference to

       the trial court’s unique position to assess the evidence, we will set aside its

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[18]   The trial court entered findings in its order terminating Mother’s parental rights.

       When the trial court enters specific findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

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

       support the judgment. Id. “Findings are clearly erroneous only when the

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 8 of 14
       record contains no facts to support them either directly or by inference.” Quillen

       v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

       only if the findings do not support the court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[19]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[20]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:


               (B) that one (1) of the following is true:


                        (i) There is a reasonable probability that the conditions
                        that resulted in the child’s removal or the reasons for
                        placement outside the home of the parents will not be
                        remedied.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 9 of 14
                        (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[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child. I.C. § 31-35-2-

       4(b)(2)(C).


[21]   Mother challenges the court’s conclusions that DCS presented sufficient

       evidence to establish that there is a reasonable probability the conditions

       resulting in Child’s removal or continued placement outside Mother’s care will

       not be remedied and that the continuation of the parent-child relationship poses

       a threat to Child’s well-being. See I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We note that

       DCS was required to establish only one of the three requirements of subsection

       (b)(2)(B) by clear and convincing evidence before the trial court could terminate

       parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App. 2003). Here,

       we focus our review on the requirements of subsection (b)(2)(B)(i).


[22]   In determining whether there is a reasonable probability that the conditions

       resulting in Child’s removal or continued placement outside the home will be

       remedied, the trial court must judge a parent’s fitness to care for his or her child

       at the time of the termination hearing, taking into consideration evidence of

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

       denied. The court must also evaluate the parent’s habitual patterns of conduct to

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 10 of 14
       determine whether there is a substantial probability of future neglect or

       deprivation of the child. Id. In conducting this inquiry, courts may consider

       evidence of a parent’s prior criminal history, drug and alcohol abuse, history of

       neglect, failure to provide support, and lack of adequate housing and

       employment. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244,

       1251 (Ind. Ct. App. 2002), trans. denied. The court may also consider the

       parent’s response to the services offered through DCS. Lang v. Starke Cnty. Office

       of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.


[23]   In terminating Mother’s parental rights, the court found:


               There is a reasonable probability that the conditions that resulted
               in the child’s removal and continued placement outside of the
               home will not be remedied by her mother. [Mother] has had
               over two years to address her substance abuse addiction and
               continues to relapse which has negatively impacted her ability to
               parent. Despite several attempts at substance abuse treatment
               she continues to use illegal substances and has used
               methamphetamine as recently as four days before this
               Termination Trial began.


       Appellant’s Appendix at 27. Mother argues that the court’s finding in this regard

       is not supported by clear and convincing evidence because the court did not

       consider that Mother entered into an intensive, in-patient drug treatment

       program just prior to the second day of the fact-finding hearing. Mother asserts

       that her current treatment program was rigorous and afforded her a psychiatric

       evaluation for treatment of PTSD, anxiety, and depression. Mother also asserts

       that she now fully appreciates the importance of aftercare treatment. In

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 11 of 14
       Mother’s view, the court should have waited to see if her most-recent efforts to

       gain sobriety would prove successful before terminating her parental rights.

       Mother’s request simply boils down to a request to reweigh the evidence.


[24]   Child was initially removed and adjudicated a CHINS based on Mother’s

       admission that she “need[ed] assistance in providing a stable home

       environment free from substance abuse.” Exhibits at 6. DCS presented

       overwhelming evidence that Mother is unlikely to remedy these conditions.


[25]   Indeed, Mother has had more than two years to achieve and maintain sobriety,

       but her efforts have proven unsuccessful. Although she has had brief periods of

       sobriety while in treatment programs, her history shows that she relapses after

       the structure is removed and life presents another challenge. Mother admits

       that she has no control over her addiction and that she uses meth to deal with

       stress. Mother agrees that she cannot care for Child when she is on meth and

       she does not want Child to see her when she is high. Service providers

       explained that a meth addict is not a fit parent because one cannot leave a four-

       year-old child to fend for herself while the parent goes on a days-long meth

       bender. Mother even testified that meth helps her “to basically block out

       memories and thoughts or emotions pretty much for days.” Transcript at 90

       (emphasis supplied).


[26]   The overarching issue in this case is Mother’s addiction to meth and the

       damaging impact her substance abuse has had on other aspects of Mother’s life

       and Child’s stability and development. While Mother’s desire for sobriety is


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 12 of 14
       commendable, she has not been able to maintain her sobriety time and time

       again. Based on the evidence presented by DCS, the court reasonably

       concluded that Mother’s last-ditch effort was unlikely to succeed in light of her

       two-year history of substance-abuse treatment followed by relapses. The court’s

       finding that Mother is unlikely to remedy the conditions that resulted in Child’s

       removal and continued placement outside the home is supported by sufficient

       evidence.


[27]   Mother argues that the trial court’s conclusion that termination is in the best

       interests of Child is clearly erroneous. In determining whether termination of

       parental rights is in the best interests of a child, the trial court is required to look

       beyond the factors identified by DCS and consider the totality of the evidence.

       In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court

       must subordinate the interest of the parent to those of the child, and the court

       need not wait until a child is irreversibly harmed before terminating the parent-

       child relationship. McBride v. Monroe Cnty. Office of Family & Children, 798

       N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme Court has explained that

       “[p]ermanency is a central consideration in determining the best interests of a

       child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “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).


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 13 of 14
[28]   The trial court concluded that termination was in Child’s best interests because

       it “would allow her to be adopted into a stable and permanent home where her

       needs will be safely met.” Appellant’s Appendix at 8. The court’s finding in this

       regard is in line with the recommendation of Child’s home-based therapist,

       GAL, and FCM, each of whom testified that Child needs permanency and that

       termination of Mother’s parental rights is in Child’s best interests. Further, as

       we concluded above, the court did not err in finding that the conditions

       resulting in removal or continued placement outside the home will not be

       remedied. The court’s conclusion that termination is in the best interests of

       Child is not clearly erroneous.


[29]   Judgment affirmed.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018   Page 14 of 14
