MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                    FILED
regarded as precedent or cited before any                                       Aug 31 2020, 9:54 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
Alexander W. Robbins                                      Curtis T. Hill, Jr.
Bedford, Indiana                                          Attorney General of Indiana

                                                          Robert J. Henke
                                                          Deputy Attorney General

                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          August 31, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of M.E., M.E., and C.E.                                   20A-JT-77
(children),                                               Appeal from the Morgan Superior
A.B. (Mother) and D.E.                                    Court
(Father),                                                 The Honorable Sara A. Dungan,
                                                          Judge
Appellants-Respondents,
                                                          Trial Court Cause Nos.
        v.                                                55D03-1906-JT-230, 55D03-1906-
                                                          JT-231, 55D03-1906-JT-232
Indiana Department of Child
Services,



Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020                           Page 1 of 18
      Appellee-Petitioner.




      Altice, Judge.


                                               Case Summary
[1]   A.B. (Mother) and D.E. (Father) (collectively, Parents) jointly appeal the

      involuntary termination of their parental rights to two of their three children.

      On appeal, Parents argue that the Indiana Department of Child Services (DCS)

      presented insufficient evidence to support the termination of their parental

      rights.


[2]   We affirm.


                                    Facts & Procedural History
[3]   Parents have three children: Mad.E., born November 12, 2008; Mac.E., born

      September 26, 2015; and C.E., born May 5, 2017. 1 DCS most recently became




      1
       During the termination hearing, Parents informed the court that they had agreed to consent to the adoption
      of Mad.E. (Sibling). The termination proceedings continued as to Mac.E. and C.E. (collectively, the
      Children).

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020                  Page 2 of 18
      involved with Parents on or about November 8, 2017, after Mother called 911

      just before 3 a.m. because Mac.E. was having difficulty breathing and needed

      emergency medical treatment. 2 According to the CHINS petition, Mother

      became “violent and belligerent” when paramedics arrived, so the paramedics

      summoned law enforcement. Exhibits at 37. Law enforcement arrived and

      observed that Father was “passed out drunk” and Mother was intoxicated. Id.

      A DCS family case manager (FCM) arrived at Parents’ home and observed

      Parents to be under the influence of alcohol. Mother admitted to consuming at

      least fifteen beers that evening (November 7) and that Father had

      approximately six beers. DCS removed the Children from the home and placed

      them with a relative.


[4]   A few hours after the incident, FCM Randa McKinney returned to Parents’

      home to administer drug screens and observed them both to still be under the

      influence of alcohol. Mother admitted to relapsing and having already

      consumed alcohol that morning. Based on this incident, DCS filed a petition

      alleging the Children were children in need of services (CHINS). At a

      factfinding hearing on January 25, 2018, the Children were adjudicated

      CHINS. The court held a dispositional hearing on February 28, 2018, after

      which the Parents were ordered to, among other things, maintain weekly




      2
       In May 2017, Parents were involved with a DCS assessment after C.E. was “born positive for alcohol”.
      Exhibits at 37. At that time, Mother admitted to drinking sixteen beers a day and Father admitted to smoking
      marijuana. Following a conviction for misdemeanor battery, Mother participated in services for alcohol
      abuse through probation in Morgan County from May through November 2017.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020                   Page 3 of 18
      contact with their FCM; participate in all recommended programs; keep all

      appointments with service providers; sign any releases necessary for the FCM

      to monitor compliance; maintain suitable, safe, and stable housing; secure and

      maintain a stable source of income; not consume alcohol or any other illegal

      controlled substances; complete a parenting assessment and successfully

      complete all recommendations; complete a substance abuse assessment and

      follow all recommendations; submit to random drug screens; not commit any

      acts of domestic violence; and attend all scheduled visitations with the

      Children.


                                                   Visitation

[5]   Visit supervisor and case manager Chris McMullen conducted supervised visits

      between Parents and the Children from November 2017 through May 2019.

      Parents had five to eight hours of visitation per week. McMullen explained that

      Parents were “very consistent” with their visitation and that the visits went

      “well” and Parents were “engaged” and “[e]njoyed spending time with their

      children.” Transcript Vol. 2 at 64-65. He noted no significant safety concerns

      during visits, that Parents interacted and responded well to the Children, and

      that there was a bond between Parents and the Children. During the visits,

      McMullen also worked with Parents and various aspects of case management.

      He testified that Parents were “open to” and “tried to implement” his parenting

      suggestions. Id. at 65.




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 4 of 18
[6]   At some point in early 2018, Parents progressed to having the Children in their

      home. 3 Overall, McMullen found Parents to be “adequate and appropriate”

      during their interactions. Id. at 66. On March 23, 2018, DCS again removed

      Children from Parents’ home because Father tested positive for marijuana and

      methamphetamine.


[7]   In 2019, Parents participated in visitation “for the most part,” until “[t]owards

      the end” when they cancelled a couple visits at the last minute because they

      were not feeling well. Transcript Vol. 2 at 59, 60. Supervised visits were

      suspended in May 2019 because of Parents missed visits. The visits later

      resumed, and at the time of the termination hearing in November 2019, Parents

      still had regular, supervised visits with the Children.


                                                 Substance Abuse

[8]   The results of the November 8, 2017 drug screen obtained by FCM McKinney

      at the time of Children’s removal showed that Mother was positive for THC

      and alcohol. Pursuant to the dispositional order, Mother was to participate in

      substance abuse treatment at Centerstone. Mother initially complied,

      submitting to the assessment, and participating in drug rehabilitation. Mother

      stayed sober for three months.




      3
        Mac.E. remained in foster care for a short time because she had surgery, but she eventually joined her
      siblings.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020                     Page 5 of 18
[9]    Kayla Black, a family support specialist and recovery coach at Centerstone,

       worked with Mother from March 2018 through January 2019 on obtaining

       employment, parenting skills, and developing a relapse prevention plan.

       Initially, Mother attended all scheduled meetings with Black. During a team

       meeting in July or August 2018, Mother admitted that she had relapsed.

       Thereafter, Mother’s participation in services became inconsistent. Mother

       sometimes contacted Black while she was intoxicated. At the time of the

       termination hearing, Black acknowledged that Mother was submitting negative

       screens, but testified that in her opinion, she had not “seen any change” and did

       not feel that Mother was making progress regarding her ability to maintain

       sobriety since her most recent return to services. Transcript Vol. 2 at 213.


[10]   Brandy Mason, a family support specialist with Centerstone, began working

       with Mother and Father on their substance abuse issues in a group setting in

       September 2018. Mason provided Mother and Father with life skills training,

       coping skills, and relapse prevention skills. Mason noted that Mother’s

       participation was sporadic and that Father did not participate in services in

       October and November as he was in inpatient treatment. Following Father’s

       release, Mason met individually with Father and testified that he was “doing

       well.” Id. at 240. Father stayed sober for three months. By the end of 2018,

       Father’s participation in services started becoming inconsistent. In January and

       February 2019, Father submitted numerous drug screens that were positive for

       THC, which led to Father’s discharge from services provided by Centerstone.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 6 of 18
[11]   Mental health therapist Emily Grimwood completed a substance abuse

       assessment on Mother in late March 2019. She diagnosed Mother with alcohol

       use disorder based on Mother’s own admissions and with a generalized anxiety

       disorder. Grimwood initially recommended weekly to biweekly treatment, but

       because Mother continued to abuse alcohol, Grimwood changed her

       recommendation to inpatient treatment. Mother did not participate in any

       services following the assessment, so Grimwood closed out services.


[12]   While Mother submitted numerous screens that were negative, Mother tested

       positive for the metabolites of alcohol on May 9, 14, and 22, and June 6 and

       August 7, 2019. In November 2019, Mother was participating in group sessions

       and individual outpatient therapy but was not participating in recovery

       coaching or life skills classes. From January 2018 through August 2019, Father

       tested positive for THC at least thirty-eight times. In October 2019, Father

       tested positive for barbiturates even though he did not have a prescription for

       the drug. At the time of the termination hearing, Father was engaged in

       individual and group therapy to address his substance abuse.


[13]   William Andrews, a clinical therapist at the Hamilton Center, treated Father

       starting in April 2019. Father participated in both individual and group therapy

       sessions. Although Andrews testified that Father had made some progress

       toward sobriety, Father did not meet his goal of weekly participation in

       services. Father ultimately admitted to Andrews that he relapsed.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 7 of 18
[14]   Father was most recently arrested in September 2019 after police were

       dispatched to Parents’ home on a possible trespass or noise complaint. When

       police arrived, Father was sitting in his truck. As officers approached, they

       observed Father rolling a joint. The officers made contact with Father, who

       offered to sell them marijuana. While interacting with Father, one of the

       officers noted a strong odor of alcohol and that Father had slurred speech.

       Shortly after his arrest, Father started over with his substance abuse program.

       Since that time, Father has been engaged in individual and group therapy with

       Andrews. Father claims he is not using alcohol or drugs and that he is

       attending meetings for Alcoholics Anonymous.


                                                Domestic Abuse

[15]   In addition to substance abuse issues, DCS was made aware of domestic abuse

       between Mother and Father. Parents would often fight when they are

       intoxicated and “sometimes it gets physical, sometimes it’s just verbal.”

       Transcript Vol. 3 at 9. Local police were familiar with Parents because of

       numerous domestic violence calls to their home over the course of eight to nine

       years preceding the instant termination proceedings. There was even a period

       in the spring/summer of 2019 when the domestic abuse reports were “daily”

       until Parents were evicted from their home. Id. at 16. On one occasion, Father

       was arrested after Mother reported that Father struck her and then showed

       police marks on her body. Mother also reported numerous times that Father

       was driving drunk, but the police would determine that his truck was parked

       outside the home. During the summer of 2019, Mother called to report that

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 8 of 18
       Father was missing. When police arrived at their home, Father was sitting

       outside. An hour later, there was a call about a domestic disturbance at

       Parents’ home. When police arrived, the area was littered with beer cans and

       Mother was yelling at Father, who was still sitting in the same place he was an

       hour earlier. Mother admitted to having punched Father, and she was arrested

       and subsequently charged with domestic battery.


[16]   Addie Byers-Bryant, a domestic violence advocate with the Rose Project,

       provided domestic violence education to Mother from January through June

       2019. Byers-Bryant testified that Mother first denied that there was domestic

       violence in her relationship, but later realized that both she and Father were

       verbally aggressive toward each other. Byers-Bryant recommended that Mother

       complete twelve domestic violence classes. After Mother missed two classes,

       she had to start the program over. Eventually, Mother completed the program.

       In July 2019, however, Mother was arrested following a domestic violence

       incident between her and Father. Mother admitted that she had been drinking

       and that she became verbally aggressive. Thereafter, Mother resumed domestic

       violence services, with her last session being August 21, 2019. In early

       September Mother sought in-patient substance abuse treatment.


[17]   Jonathan Mangano, a domestic violence counselor with Family’s First,

       conducted two domestic violence assessments on Father, one in January and a

       second in June 2019. During the first assessment, Father scored high for

       depression and PTSD, but appeared to be in denial about his substance abuse.

       During the June assessment, Father was more forthcoming about his substance

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 9 of 18
       abuse. Based on his assessments, Mangano testified that Father used power

       control tactics such as intimidation and isolation to control Mother. He

       recommended that Father participate in an intervention program but

       encouraged Father to first deal with his substance abuse. Mangano eventually

       enrolled Father in intervention services such as substance abuse treatment,

       individual therapy, and parenting classes in June 2019 but Father did not

       participate.


                                             Housing and Income

[18]   At some point, Parents were evicted from their home. In the fall of 2019,

       Parents were not living together. Mother lived in a “tiny trailer” with her

       parents, her two sisters, and her sisters’ two children. Id. at 83. Aside from lack

       of space for the Children, the home was otherwise acceptable. Father was

       living with a friend. It was Parents’ intent to get an apartment together. At one

       point, Mother obtained employment. However, at the time of the termination

       hearing, Mother’s sole source of income was $733 per month in SSI.


                                                  Best Interests

[19]   FCM Whitney Ksenak was involved with Parents from March 2018 through

       August 2019. Throughout her involvement, Mother stayed in weekly contact

       with her “for the most part” and kept her informed. Transcript Vol. 2 at 183.

       Mother and Father completed their initial assessments as required by the

       dispositional order but failed to complete the recommended services. Overall,

       FCM Ksenak described Parents’ participation in services as “up and down,”


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 10 of 18
       noting that “they had really good days or weeks, and then they would have

       rough ones.” Transcript Vol. 2 at 157. Parents had demonstrated that three

       months was the longest either of them could maintain sobriety.


[20]   FCM Ksenak testified that she spoke with Father about the need to stop his

       marijuana use to reunite with Children and Father told her that “he can’t stop”

       and that “he had to have it. That was his cope for his anxiety.” Id. at 200.

       When she talked to Mother about her alcohol use, Mother always said she was

       going to stop, but then she would continue to drink. Mother told her that the

       reason she drank was because she “got bored.” Id. at 201.


[21]   FCM Ksenak testified that termination was in the best interests of the Children

       because Parents could not maintain sobriety, establish stability in housing and

       employment, or demonstrate an ability to provide a safe, secure environment

       for the Children. She was also concerned with Parents’ lack of effort to address

       mental health needs and domestic violence. FCM Ksenak testified that the

       Children were thriving in their placements. She supported DCS’s plan for

       termination and adoption of the Children by their foster parents.


[22]   FCM Crystal Jeffries was assigned to Parents at the time of the termination

       hearing. FCM Jeffries pointed out that Mother had been arrested in July 2019

       for domestic battery and that DCS recommended that she participate again in

       domestic violence services. By the time of the termination hearing, Mother had

       completed domestic violence services, completed inpatient substance abuse

       treatment, and was participating in group therapy. Mother last tested positive


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 11 of 18
       for alcohol in August 2019 and, according to Mother, was scheduled to

       complete current services in December 2019. Father had started group therapy

       but was not participating in other services and he had three positive screens for

       phenobarbital. Despite their recent strides, FCM Jeffries testified that her

       concerns regarding Parents were not fully alleviated. Considering their history,

       FCM Jeffries believed that Parents’ recent efforts were a continuation of the

       same cycle. She supported the plan for termination and adoption.


[23]   Court Appointed Special Advocate (CASA) Debra Hendrickson testified that

       the Children began to develop very quickly in foster care and that they were

       thriving. The Children receive extra help, such as speech therapy and physical

       and developmental therapy. CASA Hendrickson testified that Parents went

       through cycles of doing better and relapsing and that because of these cycles,

       the case never advanced. She acknowledged that Parents had worked hard and

       had recently successfully completed rehabilitation but noted Parents pattern of

       making similar progress before regressing back to substance abuse. CASA

       Hendrickson opined that termination was in the best interests of the Children

       because Parents are unable to maintain sobriety and the Children are thriving in

       foster care. She expressed concerns about Parents’ ability to provide “safe,

       sober caregiving” for the Children. Transcript Vol. 3 at 106. She believed

       adoption by the current foster parents was in the Children’s best interests.


[24]   Due to Parents’ positive drug tests and their inconsistent (or lack of)

       participation in services, DCS moved to change the permanency plan from

       reunification to adoption on May 19, 2019. On June 17, 2019, DCS filed a

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 12 of 18
petition to terminate Parents’ parental rights. The court held a fact-finding

hearing on August 30 and November 14-15, 2019. On December 13, 2019, the

court entered its order terminating Parents’ parental rights to Children. 4 In its

order, the court summarized the above in its findings of fact and found as

follows:


        While there has been some progress here and there, the parties
        can’t seem to get things together for long enough periods of time
        to allow for reunification. The [C]hildren have not been able to
        be placed back with either parent during the life of the case after
        their second removal. Mother and Father have both failed several
        tests for alcohol and drugs during the life of this case. Mother’s
        last positive alcohol screen as recent as August 2019 and Father’s
        arrest in September of 2019 just add to the conclusion that the
        [P]arents are not able to meet the needs of the [C]hildren, in
        being safe and sober caregivers. The inability of the parties to
        find housing and stability is also problematic. Stability, housing
        issues, police contact, relapses, and the substantial evidence of
        substance and domestic violence issues are all concerning to the
        Court. Mother and Father have been given multiple
        opportunities and the [C]hildren have waited long enough for
        Mother and Father to get their acts together.


Appellant’s Appendix Vol. I at 21. The Court therefore concluded that DCS

proved by clear and convincing evidence that there was a reasonable

probability that the conditions resulting in removal of the Children would not

be remedied and that continuation of the parent-child relationship poses a




4
 The court took termination of Parents’ parental rights to Mad.E. under advisement, pending the outcome of
adoption proceedings.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020                Page 13 of 18
       threat to the well-being of the Children. Mother and Father now appeal.

       Additional facts will be provided as necessary.


                                        Discussion & Decision
[25]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628

       (Ind. 2016). Instead, we consider only the evidence and reasonable inferences

       most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. 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. In light of the applicable clear and convincing evidence

       standard, we review to determine whether the evidence clearly and

       convincingly supports the findings and whether the findings clearly and

       convincingly support the judgment. In re R.S., 56 N.E.3d at 628.


[26]   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


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 14 of 18
       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.


[27]   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, that one 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[.]


       Ind. Code § 31-35-2-4(b)(2)(B); Ind. Code § 31-37-14-2. DCS must also prove

       by clear and convincing evidence that termination is in the best interests of the

       child and that there is a satisfactory plan for the care and treatment of the child.

       I.C. § 31-35-2-4(b)(2)(C), (D); I.C. § 31-37-14-2.


[28]   On appeal, Parents argue that there is insufficient evidence that the conditions

       resulting in removal of the Children would not be remedied or that continuation

       of the parent-child relationship poses a threat to the well-being of the Children.

       Because DCS was required to establish only one of these by clear and

       convincing evidence, we focus our review on subsection (b)(2)(B)(i).


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 15 of 18
[29]   In deciding whether a reasonable probability exists that conditions will not be

       remedied, the trial court must judge the parents’ fitness to care for their children

       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

       determine whether there is a substantial probability of future neglect or

       deprivation of the child. Id. “A pattern of unwillingness to deal with parenting

       problems and to cooperate with those providing social services, in conjunction

       with unchanged conditions, support a finding that there exists no reasonable

       probability that the conditions will change.” In re L.S., 717 N.E.2d at 210.

       DCS need not provide evidence ruling out all possibilities of change; rather, it

       need establish only that there is a reasonable probability the parent’s behavior

       will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).


[30]   Parents assert by the time of the termination hearing they both had shown

       “significant progress and their commitment toward reunification was clear.”

       Appellant’s Brief at 9. They point to the fact that they had both recently

       completed rehabilitative programs and that they had both submitted negative

       screens for the three months preceding the final termination hearing. They

       therefore argue that “[i]n light of all the progress [they] made,” the trial court

       erred in concluding that DCS proved by clear and convincing evidence that

       they would not remedy the conditions that led to removal of the Children or

       their continued placement outside the home.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 16 of 18
[31]   “Because a case that seems close on a ‘dry record’ may have been much more

       clear-cut in person, we must be careful not to substitute our judgment for the

       trial court when reviewing the sufficiency of the evidence.” In re E.M., 4

       N.E.3d 636, 640 (Ind. 2014). Here, the trial court acknowledged evidence from

       service providers regarding the progress and positive steps Mother and Father

       took at various times throughout the proceedings. The court also noted,

       however, evidence showing a cycle of behavior. Parents demonstrated that

       they could engage in services and achieve and maintain sobriety, but each time

       was short lived as Parents resorted back to alcohol and drugs that in turn led to

       domestic violence and instability.


[32]   Two years after the Children were initially removed from their care, service

       providers believed that Parents had effectively made little progress toward

       maintaining sobriety and establishing a safe and stable home for Children. The

       trial court agreed. “Where there are only temporary improvements and the

       pattern of conduct shows no overall progress, the court might reasonably find

       that under the circumstances, the problematic situation will not improve.” In re

       A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). Here, it clear that the court

       found Parents’ pattern of conduct over the previous two years more telling of

       the probability of future success than their most recent efforts. We will not

       second-guess the trial court in this regard. We therefore cannot say that the

       court’s conclusion that there is a reasonable probability that the conditions that

       resulted in the Children’s removal and/or continued placement outside the

       home will not be remedied is clearly erroneous.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 17 of 18
[33]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-77 | August 31, 2020   Page 18 of 18
