MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jan 22 2019, 6:07 am

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
Joann M. Price                                            Curtis T. Hill, Jr.
Merrillville, Indiana                                     Attorney General of Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of Involuntary                              January 22, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          18A-JT-1960
                                                          Appeal from the Lake Superior
M.R., M.D., and A.D. (Minor Children)                     Court
and                                                       The Honorable Thomas P.
                                                          Stefaniak, Judge
D.D. (Mother),
                                                          Trial Court Cause Nos.
Appellant-Respondent,                                     45D06-1705-JT-126
                                                          45D06-1705-JT-127
        v.                                                45D06-1705-JT-128

The Indiana Department of Child
Services,
Appellee-Petitioner,

and


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019                  Page 1 of 16
      Lake County Court Appointed
      Special Advocate
      Co-Appellee, Court Appointed
      Special Advocate.




      Robb, Judge.




                                   Case Summary and Issue
[1]   D.D. (“Mother”) appeals the juvenile court’s termination of her parental rights

      to M.R., M.D., and A.D., raising only one issue for our review which we

      restate as whether the juvenile court’s termination of her parental rights was

      clearly erroneous. Concluding the termination of Mother’s parental rights was

      not clearly erroneous, we affirm.



                              Facts and Procedural History
[2]   M.R. was born to Mother on January 8, 2013, followed by M.D. on August 5,

      2014, and A.D. on December 16, 2015 (collectively the “Children”).1 Three




      1
       M.R. and M.D. share the same father while A.D.’s father was initially unknown. A.D.’s father was
      eventually located and both fathers were appointed counsel. Neither father participated in the underlying
      proceedings and the juvenile court terminated their parental rights. Since neither father participates in this
      appeal, we recite only the facts pertinent to Mother.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019                    Page 2 of 16
      days after A.D.’s birth, on December 19, the Indiana Department of Child

      Services (“DCS”) received a report alleging that Mother had tested positive for

      opiates and amphetamine while she was pregnant with A.D., that A.D. had

      tested positive for opiates at birth, and that A.D. was exhibiting signs of

      withdrawal.


[3]   After Mother was discharged,2 a DCS family case manager, Areca Griggs, met

      with Mother and spoke to her about the allegations. Mother denied any drug

      use other than methadone. However, in addition to methadone, Mother’s

      saliva drug screen tested positive for amphetamine and opiates. The two older

      children, M.R. and M.D., were not at Mother’s home at the time so Griggs

      scheduled an appointment to return. Mother was not there when Griggs

      returned, and Mother later admitted that she had left M.R. and M.D. in the

      care of their paternal grandmother.


[4]   On January 6, 2016, the Children were removed from Mother’s care due to her

      ongoing drug use.3 On January 7, DCS filed a petition alleging the Children

      were children in need of services (“CHINS”), and the juvenile court held an

      initial hearing authorizing the Children’s continued removal. With that order,

      the juvenile court also required Mother to complete random drug screens, a

      substance abuse evaluation, a parenting assessment, an initial clinical




      2
          A.D. remained in the Neonatal Intensive Care Unit (“NICU”).
      3
       M.R. and M.D. were initially placed in foster care but returned to their paternal grandmother once DCS
      completed a background check. A.D. remained in the NICU.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019              Page 3 of 16
      assessment, to receive supervised visitations and home-based services, and to

      follow any corresponding recommendations. See State’s Exhibits A to Z at 128-

      29. The Children were adjudicated CHINS on May 12.


[5]   From April 2016 until August 2017, Mother was provided supervised visitation

      with Asencia Sanchez at Higher Dimensions Incorporated (“HDI”). At

      Mother’s request, visitations were held twice a week for a total of four hours

      instead of the eight hours specified on the referral. Sanchez testified that while

      these visits “always started out good . . . towards the end of the visit, [Mother]

      was just frustrated.” Transcript, Volume II at 66. Mother’s attendance at these

      visitations was “inconsistent” but “she attended more than she missed.” Id. at

      66-67. Sanchez characterized Mother’s approach with the Children as

      “aggressive[,]” and recalled that Mother would occasionally threaten the

      Children that she would “whoop [their] a**[,]” despite being asked to stop

      doing so. Id. at 71, 69. Sanchez also reported that Mother’s nickname for the

      Children was “slaves” while referring to herself as “their master.” Id. at 70.


[6]   A.D. has dealt with severe food allergies since birth. These allergies include

      peanuts, tree nuts, soy, and most seeds including poppy and sesame seeds. Soy

      causes A.D. gastrointestinal issues and A.D. carries an Epi Pen to treat a

      potential anaphylactic reaction to her other allergies. Despite Mother’s

      awareness of these allergies and knowledge of A.D.’s sugar free diet, Mother

      would “sneak[] [A.D.] Cheetos or . . . macaroni and sugar.” Id. at 71. A.D.’s

      foster mother testified that A.D. “would come home from visitations hurled

      over in pain. She would stay up all night. She would scream. She would have

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019   Page 4 of 16
      meltdowns.” Id. at 53. M.R. and M.D. had no such dietary restrictions but

      also exhibited negative effects of visits with Mother. Sanchez testified that

      “[w]hen it was bad, it was really, really bad.” Id. at 76. On the “really bad

      times,” Sanchez was afraid to put the Children in the car because she was afraid

      “they were crying so hard that they would choke.” Id.


[7]   During a visit on June 7, 2017, Mother tested positive for heroin, morphine,

      and hydrocodone and Sanchez requested that supervised visitation with Mother

      be terminated. On July 27, DCS formally requested that visitations be

      discontinued based on concerns that Mother had attended many visits “high

      and incoherent” and that “Mother’s random drug screens at her last four visits

      were positive for either methadone, hydrocodone or heroin.” State’s Exhibits

      AA to ZZ at 85. The juvenile court subsequently terminated supervised

      visitations. Overall, Sanchez testified that these visits were unsuccessful

      “[b]ecause [Mother’s] duration with them was two hours and . . . more often

      than not, it ended negatively.” Tr., Vol. II at 70.


[8]   Sanchez also provided services to Mother in order to assist her with housing

      and employment. It was difficult for Sanchez to arrange visits with Mother but

      Mother eventually secured employment at a Speedway and housing with her




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019   Page 5 of 16
       mother.4 Mother completed a parenting assessment 5 and parenting classes but

       “slowly digressed and quit using what was offered” or “suggested.” Id. at 65.


[9]    Mother admits she has struggled with opiate addiction but denies that she has a

       substance abuse problem. Although Mother initially completed a substance

       abuse evaluation by Eugene Wilson at Apostolic and was referred to substance

       abuse therapy, Mother did not attend therapy on a consistent basis and failed to

       complete an inpatient treatment program, as recommended by Wilson. Mother

       submitted to drug screens inconsistently and tested positive for opiates and/or

       other illegal substances on twelve occasions. See State’s Exhibits A-Z at 26-93.

       Between November 20, 2017 and March 2, 2018, Mother failed to submit to

       any drug screens at all. When she finally resumed screening on March 2, she

       tested positive for tramadol and synthetic marijuana, alcohol on March 8, and

       synthetic marijuana on May 24, before producing two negative screens on June

       1 and June 6.


[10]   DCS filed a verified petition for the termination of parent-child relationship

       between Mother and the Children and the juvenile court conducted a fact-

       finding hearing on June 19, 2018. After taking the matter under advisement,

       the juvenile court granted the petition and terminated Mother’s rights through




       4
           Maternal grandmother, however, also struggles with substance abuse issues.
       5
           It is unclear as to when this assessment was completed or what recommendations were made, if any.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019                Page 6 of 16
written findings of fact and conclusions of law issued on July 16, 2018,

concluding, in relevant part:


        Mother would not make herself available for the drug screens
        through the service provider, Redwood. Mother did not submit
        to any drug screens in the year 2016. The case manager would
        attend the visitations in 2017 that [M]other had with her
        [C]hildren to drug screen the [M]other. Mother would
        consistently test positive on the drug screens that she would
        submit to with the case manager.


        Mother was inconsistent with the visitations with the [C]hildren.
        Mother would be inappropriate with the service providers and
        would curse at the providers. Mother had recurring issues with
        controlling her temper and her language at the visitations. The
        [M]other would call the [C]hildren names and would be
        inappropriate with her interactions with the [C]hildren. Mother’s
        lack of control over her temper was a recurring issue at the
        visitations. Mother would become aggravated with the
        [C]hildren. Mother would have to be redirected on numerous
        occasions with her interactions with the [C]hildren. The
        visitations were very stressful on the [C]hildren and would often
        times have to be consoled by the transportation provider when
        the [C]hildren would become upset after the visitations. [A.D.]
        does not know who the parents are and does not have any
        significant bond with either parent. [A.D.] has never seen her
        father . . . . [M.R. and M.D.] do not have a healthy relationship
        with the [M]other. Mother’s approach to the [C]hildren is
        aggressive in nature and the [C]hildren have no significant bond
        to the [M]other. Due to [M]other’s inconsistency with attending
        the visitations, behavior at the visits and continued drug usage,
        visitations were stopped in August of 2017.


        Mother did not complete her substance abuse assessment.
        Mother did not consistently make herself available for the drug

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019   Page 7 of 16
        screens. Mother was offered substance abuse services, but
        [M]other did not avail herself to the services. Mother is non—
        compliant with the case plan for reunification. Mother has made
        marginal effort in participating in the case plan. Mother has not
        remedied the reasons for removal or the reasons for continued
        out of home placement. Mother has not addressed her substance
        abuse issues, nor has [M]other participated in any substance
        abuse treatment.


        ***


        Mother by her own testimony indicated that she cannot afford
        independent housing and is residing with her mother. Mother
        testified that the visitations with her [C]hildren were stressful due
        to being held at a facility, although the court notes [M]other has
        never progressed to unsupervised visits with her [C]hildren.
        Mother testified that she is now planning on entering a substance
        abuse program, although her [C]hildren have been wards in out
        of home placement since January of 2016. Mother furthered
        testified that she does not have a substance abuse problem.
        Although the court applauds [M]other on her verbal attempt at
        treatment for her substance abuse issues, the court must 1ook at
        the best interest of these [C]hildren. Delaying permanency for
        the possibility of [M]other beginning and completing services
        outlined in the case plan is not in these [C]hildren’s best interests.
        Mother was given over two years and has not progressed in any
        portion of the case plan. After two and a half years, Mother
        continues to struggle with her substance abuse issues. After two
        and a half years, [M]other is no closer to reunification with her
        [C]hildren.


        All efforts attempted to obtain reunification with any of the
        parents have failed. The [C]hildren have remained out of
        parental care. The [C]hildren have bonded in their current
        placements and removal of these [C]hildren from their current
        placements would be detrimental to these [C]hildren’s well—
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019   Page 8 of 16
        beings. The best interest of these [C]hildren is continued
        placement in their current placements.


        No parent is providing any emotional or financial support for the
        [C]hildren. No parent has completed any case plan for
        reunification. No parent is in a position to properly parent these
        [C]hildren. The [C]hildren are bonded and thriving in their
        placements.


        The [C]hildren remain outside of the parents’ care. The original
        allegations of neglect have not been remedied by the parents.
        None of these parents have demonstrated an ability to
        independently parent the [C]hildren and provide necessary care,
        support and supervision. The Court finds no basis for assuming
        any of the parents will complete the necessary services and find
        one or all of themselves in a position to receive the [C]hildren
        back into the home. The parents failed to utilize the available
        services and make the necessary efforts to remedy the conditions,
        which led to intervention by DCS and the Court.


        The [C]hildren continue to reside in a stable foster homes which
        has [sic] indicated both a willingness and ability to adopt all the
        [C]hildren. Although the [C]hildren are in separate homes, the
        [C]hildren maintain contact with each other. It would be unfair
        to the [C]hildren to delay such permanency on the very remote
        likelihood of the parents committing to and completing services.


        There is a reasonable probability that the continuation of the
        parent-child relationship poses a threat to the well-being of the
        [C]hildren in that: for the reasons stated above. Additionally, the
        [C]hildren deserve a loving, caring, safe, stable and drug free
        home.


        It is in the best interest of the [C]hildren and his [sic] health,
        welfare and future that the parent-child relationship between the

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019   Page 9 of 16
               [C]hildren and his [sic] parents be forever fully and absolutely
               terminated.


               [DCS] has a satisfactory plan for the care and treatment of the
               [C]hildren which is Adoption by Grandmother, [for M.R. and
               M.D.]; Adoption by the foster parents [for A.D.].


       Appellant’s Appendix, Volume 2 at 3-5. Mother now appeals.



                                  Discussion and Decision
                                          Termination Order
[11]   The only issue presented for our review is whether the termination of Mother’s

       parental rights was clearly erroneous. We note that a parent’s interest in the

       care, custody, and control of his child is “perhaps the oldest of the fundamental

       liberty interests[,]” Bester v. Lake Co. OFC, 839 N.E.2d 143, 147 (Ind. 2005), and

       these rights are protected by the Fourteenth Amendment to the United States

       Constitution, In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied.

       Although these rights are constitutionally protected, they are not without

       limitation, and the law provides for the termination of the parent-child

       relationship 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).


                                       A. Standard of Review
[12]   We do not reweigh the evidence or judge the credibility of witnesses when

       reviewing the termination of parental rights. In re D.D., 804 N.E.2d at 265.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019   Page 10 of 16
       Rather, we consider only the evidence, and reasonable inferences therefrom,

       most favorable to the judgment, id., and we will only set aside the court’s

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

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

       534 U.S. 1161 (2002).


[13]   As required by Indiana Code section 31-35-2-8, the juvenile court entered

       findings of fact and conclusions thereon when terminating Mother’s parental

       rights. We therefore apply a two-tiered standard of review. Bester, 839 N.E.2d

       at 147. We must first determine whether the evidence supports the findings;

       then we determine whether the findings support the judgment. Id. Findings

       will only be set aside if they are clearly erroneous and findings are clearly

       erroneous only “when the record contains no facts to support them either

       directly or by inference.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).


                      B. Termination of Mother’s Parental Rights
[14]   To terminate parental rights, Indiana Code section 31-35-2-4(b)(2) requires the

       State to prove, in relevant 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.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019   Page 11 of 16
                         (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 prove the foregoing elements by clear and convincing evidence.

       Ind. Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). However,

       because subsection (b)(2)(B) is written in the disjunctive the juvenile court need

       only find one of the three elements by clear and convincing evidence. See, e.g.,

       In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009).


[15]   “[I]f the court finds that the allegations in a petition described in [Indiana Code

       section 31-35-2-4(b)(2)] are true, the court shall terminate the parent-child

       relationship.” Ind. Code § 31-35-2-8(a) (emphasis added). Here, the juvenile

       court found that the State proved both subsections (i) and (ii) of Indiana Code

       section 31-35-2-4(b)(2)(B) by clear and convincing evidence. Mother now

       challenges those findings.6




       6
         Notably, Mother does not challenge the juvenile court’s findings that termination is in the best interests of
       the Children and that there is a satisfactory plan for the care and treatment of the Children. We therefore


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019                   Page 12 of 16
[16]   Mother contends the State failed to prove by clear and convincing evidence the

       conditions resulting in the Children’s removal will not be remedied. In

       determining whether the conditions that resulted in a child’s removal will not

       be remedied,


               we engage in a two-step analysis. First, we identify the
               conditions that led to removal; and second, we determine
               whether there is a reasonable probability that those conditions
               will not be remedied. In the second step, the trial court must
               judge a parent’s fitness as of the time of the termination
               proceeding, taking into consideration evidence of changed
               conditions—balancing a parent’s recent improvements against
               habitual patterns of conduct to determine whether there is a
               substantial probability of future neglect or deprivation. We
               entrust that delicate balance to the trial court, which has
               discretion to weigh a parent’s prior history more heavily than
               efforts made only shortly before termination. Requiring trial
               courts to give due regard to changed conditions does not preclude
               them from finding that parents’ past behavior is the best predictor
               of their future behavior.


       In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (citations, quotations, and footnote

       omitted).


[17]   Here, the Children were initially removed from Mother’s care on January 6,

       2016, due to Mother’s drug use while she was pregnant with A.D. The

       Children have never returned to Mother’s care.




       accept these findings as true. See McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (“Father
       does not challenge these findings and we accept them as true.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019               Page 13 of 16
[18]   In challenging the juvenile court’s conclusion on this issue, Mother argues the

       court “failed to take into consideration any evidence of changed conditions

       presented at the fact finding [hearing].” Appellant’s Brief at 9. In support of

       her argument, Mother cites her own testimony that she “was no longer taking

       prescription drugs and that she no longer required methadone. In fact, Mother

       indicated [t]hat she had not had methadone in a year prior to the fact finding

       [hearing].” Id. Mother also produced evidence that she completed a seven-day

       detox program in May 2018.


[19]   We begin by noting the requirement that juvenile courts consider evidence of

       changed conditions does not preclude a conclusion that the parent’s past

       behavior is the best predictor of the future. In re E.M., 4 N.E.3d at 643. The

       record reveals that during the underlying CHINS case, Mother was inconsistent

       in submitting to drug screens, and when she did submit to screens, she often

       tested positive for opiates and other illegal substances. See State’s Exhibits A-Z

       at 26-93 (indicating Mother failed over twelve drug screens). Although

       Mother’s most recent drug screens were either entirely negative or positive only

       for synthetic marijuana, Mother failed to complete a drug screen for the

       immediately preceding three to four-month period. See id. at 94-95; Tr., Vol. II

       at 110 (testimony by the family case manager that prior to Mother’s screens

       within a week and a half before the fact-finding hearing, Mother had not

       produced a screen for three to four months).


[20]   To the extent Mother now relies on her participation in a seven-day detox

       program, we agree that her willingness to complete such a program is indeed

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019   Page 14 of 16
       progress. Viewed in the context of this case and Mother’s history of substance

       abuse, however, the extent of that progress is minimal. See, e.g., Thompson v.

       State, 804 N.E.2d 1146, 1149 (Ind. 2004) (a factfinder is not obliged to credit a

       party’s testimony or assign evidence the same value as a party does). This is

       further evidenced by the fact that after completing the detox program, Mother

       failed yet another drug screen, testing positive for tramadol and synthetic

       marijuana a week before the fact-finding hearing. Tr., Vol. II at 108, 140.


[21]   Furthermore, contrary to Mother’s assertion, our review of the record reveals

       that the juvenile court did, in fact, take into consideration Mother’s recent

       efforts. The juvenile court stated it “applauds [M]other on her verbal attempt at

       treatment for her substance abuse issues” but ultimately concluded “[a]fter two

       and a half years, [M]other is no closer to reunification with her [C]hildren.”

       Appellant’s App., Vol. 2 at 4. We agree. And while we also commend

       Mother’s recent progress and participation in a detox program, the

       overwhelming evidence of Mother’s history far outweighs those recent efforts.

       Therefore, in the absence of any prolonged effort or even Mother’s

       acknowledgment of her substance abuse issues, we conclude the juvenile court

       was well within its discretion to “disregard the efforts Mother made only

       shortly before termination and to weigh more heavily Mother’s history of




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019   Page 15 of 16
       conduct prior to those efforts.” K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1234 (Ind. 2013) (quotation and citation omitted).7



                                                  Conclusion
[22]   The juvenile court’s conclusion that the conditions that led to the removal of

       the Children would not be remedied was not clearly erroneous. We therefore

       affirm the order of the juvenile court terminating Mother’s parental rights.


[23]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       7
         Mother also challenges the juvenile court’s conclusion that there is a reasonable probability that
       continuation of the parent-child relationship poses a threat to the well-being of the Children. As noted,
       Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires only one element be proven
       to terminate Mother’s parental rights. See In re I.A., 903 N.E.2d at 153. Therefore, having concluded the
       evidence is sufficient to show a reasonable probability that the conditions resulting in Children’s removal will
       not be remedied, we need not address Mother’s argument on this issue.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019                  Page 16 of 16
