MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Feb 28 2019, 9:57 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Noah T. Williams                                          Curtis T. Hill, Jr.
Monroe County Public Defender                             Attorney General of Indiana
Bloomington, Indiana
                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Matter of the                                   February 28, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of R.P.;                                     18A-JT-2152
S.P. (Mother),                                            Appeal from the Monroe Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Frances G. Hill,
        v.                                                Judge
                                                          Trial Court Cause No.
The Indiana Department of                                 53C06-1710-JT-793
Child Services,
Appellee-Petitioner.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019               Page 1 of 11
                                          Statement of the Case
[1]   S.P. (“Mother”) appeals the termination of the parent-child relationship with

      her son, R.P., (“R.P.”), claiming that the Department of Child Services

      (“DCS”) failed to prove by clear and convincing evidence that: (1) there is a

      reasonable probability that the conditions that resulted in R.P.’s removal will

      not be remedied; and (2) termination of the parent-child relationship is in R.P.’s

      best interests. Concluding that there is sufficient evidence to support the trial

      court’s decision to terminate the parent-child relationship, we affirm the trial

      court’s judgment.1


[2]   We affirm.


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


                                                         Facts
[3]   The evidence and reasonable inferences that support the judgment reveal that

      R.P. was born in December 2015. In July 2016, DCS filed a petition alleging

      that R.P. was a Child in Need of Services (“CHINS”) because Mother was

      addicted to methamphetamine and needed help to overcome her addiction.

      The petition further alleged that Mother had tested positive for




      1
       The trial court also terminated J.G.’s (“Father”) parental relationship with R.P. Father is not a party to this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019                  Page 2 of 11
      methamphetamine twice in June 2016. She had also tested positive for THC in

      June and July 2016.


[4]   In October 2016, the trial court adjudicated R.P. to be a CHINS. Specifically,

      the trial court’s order, which allowed R.P. to remain in Mother’s home,

      explained that given Mother’s “addiction and drug usage, the coercive

      intervention of the court is clearly necessary to ensure the safety of [R.P.]” (Ex.

      Vol. at 9). The following month, the trial court ordered Mother to: (1) provide

      safe, suitable, and stable housing for her child; (2) allow DCS service providers

      and/or the CASA to complete announced and unannounced visits to the home;

      (3) abstain from alcohol and drug use and submit to random drug screens; (4)

      maintain a legal source of income; (5) participate and follow the

      recommendations of a substance abuse assessment; and (6) participate in home-

      based case management services.


[5]   In February 2017, DCS recommended placing R.P. with his maternal

      grandmother (“Maternal Grandmother”). The trial court’s order authorizing

      the placement stated that it was in R.P.’s best interest to be removed from

      Mother’s home because he needed protection that could not be provided in the

      home. An April 2017 review hearing order provided that Mother was not in

      compliance with the CHINS dispositional order because she had continued to

      use illegal substances and she and her new boyfriend had both tested positive

      for methamphetamine. When asked to choose between caring for R.P. and

      living without electricity with her boyfriend, Mother chose living with her

      boyfriend.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019   Page 3 of 11
[6]   Following an August 2017 review hearing, the trial court found that Mother

      had not complied with the dispositional order and had not “resolved the

      reasons for the removal of [R.P.] from her care.” (App. Vol. 2 at 9). The trial

      court specifically noted that Mother had continued to test positive for

      methamphetamines and THC. In addition, Mother had not been in compliance

      with home-based case management services and had cancelled visitation with

      R.P. The trial court also noted that the current conditions in Maternal

      Grandmother’s house “create[d] an unacceptable safety risk to [R.P.]” (App.

      Vol. 2 at 10). The trial court therefore ordered R.P.’s removal from Maternal

      Grandmother and placement in foster care.


[7]   DCS filed a petition to terminate Mother’s parental rights in October 2017.

      Testimony at the May and July 2018 termination hearing revealed that Mother

      had not completed any of the court-ordered programs. In addition, she did not

      have stable housing or legal employment, and she continued to use drugs. She

      specifically admitted that she had used marijuana less than a month before the

      hearing and that she had also recently tested positive for methamphetamine.

      Also at the hearing, Mother admitted that she was “not physically stable to

      have [her] son in her home.” (Tr. 152). However, she testified that she

      preferred R.P. to be placed with Maternal Grandmother.


[8]   Salvation Army Harbor Lights Center Lead Assessment Counselor Whitney

      Beasley (“Counselor Beasley”) testified that she had assessed Mother in

      November 2017 and then again in February 2018. Following the most recent

      assessment, Counselor Beasley had recommended that Mother attend an

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019   Page 4 of 11
       intensive outpatient program based upon Mother’s use of methamphetamine

       and marijuana. Harbor Lights Center Counselor Tracey Jordan testified that

       Mother had begun the intensive outpatient program in February 2018 but had

       been discharged the following month “due to excessive no call, no shows.” (Tr.

       94).


[9]    Also at the hearing, DCS asked therapist Jennifer Zigler (“Therapist Zigler”), who

       had been one of Mother’s therapists, whether Mother had been diagnosed with

       any disorders. Therapist Zigler responded that Mother had four diagnoses in her

       chart but that Therapist Zigler was not the therapist who had diagnosed Mother.

       Mother’s counsel raised a hearsay objection because the therapist had not

       diagnosed Mother; however, the trial court determined that the evidence was

       admissible for “the basis for [the therapist’s] work, but not necessarily for the . . .

       truth of whether that diagnosis was correct.” (Tr. 50). Therapist Zigler testified

       that Mother had been diagnosed with amphetamine use, cannabis use, alcohol use

       and anxiety disorders.


[10]   DCS Case Manager Heidi Flynn (“Case Manager Flynn”) testified that Mother’s

       substance abuse was the original reason for DCS involvement and that the reasons

       for R.P.’s removal from his home had not been remedied because Mother had

       failed to complete court-ordered services, including an intensive outpatient drug

       treatment program. In addition, Case Manager Flynn testified that Mother had

       unstable housing and employment and had made no progress with court-ordered



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019   Page 5 of 11
       services. Case Manager Flynn also testified that termination was in R.P.’s best

       interests and that the permanency plan for R.P. was foster parent adoption.


[11]   Lastly, CASA Roseanne Liggett (“CASA Liggett”) testified that termination was in

       R.P.’s best interests because Mother was not able to provide a safe and stable

       home for him. CASA Liggett further testified that R.P. was thriving in foster care.


[12]   Following the hearing, the trial court issued a detailed fourteen-page order

       terminating Mother’s parental relationship with R.P. The order concluded, in

       relevant part, as follows:


               The Child was adjudicated CHINS based on Mother’s admitted
               use and addiction to methamphetamines. The Review and
               Permanency Orders reflect Mother’s positive tests for
               methamphetamines and marijuana through August 2017.
               Mother tested positive for marijuana in 2018. Mother admitted
               at this hearing to using marijuana in the last month. Although
               Mother testified in this hearing that she had not used
               methamphetamine since August 2017, Mother admitted that she
               had a positive drug screen for methamphetamine during the next
               to last hearing. The two substance abuse professionals assessing
               and/or counseling Mother from Harbor Lights Drug Treatment
               through April 2018 testified that Mother needs Intensive
               Outpatient Treatment and Inpatient Transitional Housing. . . .
               Mother did not complete the IOP or the recommended drug
               treatment to ensure sobriety if the Child was returned to her care.
               While marijuana use alone might not support a termination
               conclusion, Mother’s long history of methamphetamine use
               despite the availability of treatment programs, with an ongoing
               recommendation for drug treatment, constitutes clear and
               convincing evidence that Mother continues to have a drug
               problem and that creates a danger to the Child that will not be
               remedied.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019   Page 6 of 11
       (App. at 18-19). Mother now appeals.


                                                    Decision
[13]   Mother argues that there is insufficient evidence to support the termination of

       her parental rights. The Fourteenth Amendment to the United States

       Constitution protects the traditional right of parents to establish a home and

       raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,

       the law provides for termination of that right when parents are unwilling or

       unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147

       (Ind. 2005). The purpose of terminating parental rights is not to punish the

       parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

       App. 1999), trans. denied.


[14]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[15]   A petition to terminate parental rights must allege:

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019   Page 7 of 11
               (B) that one (1) of the following is true:

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

                        (ii) There is a reasonable probability that the continuation
                        of the parent-child relationship poses a threat to the well-
                        being of the child.

                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services;

               (C) that termination is in the best interests of the child; and

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

       IND. CODE § 31-35-2-4(B)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[16]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she first contends that the

       evidence is insufficient to show that there is a reasonable probability that the

       conditions that resulted in R.P.’s removal will not be remedied. In determining

       whether the conditions that resulted in a child’s removal or placement outside

       the home will not be remedied, we engage in a two-step analysis. In re E.M., 4

       N.E.3d 636, 643 (Ind. 2014). We first identify the conditions that led to

       removal or placement outside the home and then determine whether there is a

       reasonable probability that those conditions will not be remedied. Id. The

       second step requires trial courts to judge a parent’s fitness at the time of the


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019   Page 8 of 11
       termination proceeding, taking into consideration evidence of changed

       conditions and balancing any recent improvements against habitual patterns of

       conduct to determine whether there is a substantial probability of future neglect

       or deprivation. Id. Habitual conduct may include parents’ prior criminal

       history, drug and alcohol abuse, history of neglect, failure to provide support,

       and a lack of adequate housing and employment. A.D.S. v. Ind. Dep’t of Child

       Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. The trial court

       may also consider services offered to the parent by DCS and the parent’s

       response to those services as evidence of whether conditions will be remedied.

       Id. Requiring trial courts to give due regard to changed conditions does not

       preclude them from finding that a parent’s past behavior is the best predictor of

       his future behavior. E.M., 4 N.E.3d at 643.


[17]   Here, our review of the evidence reveals that R.P. was adjudicated to be a

       CHINS in October 2016 because of Mother’s drug use. Nearly two years later,

       Mother was still using drugs and had not completed any of the court-ordered

       services. She also lacked stable housing and employment. Mother even

       admitted at the termination hearing that she was not physically stable enough to

       care for her son. This evidence supports the trial court’s conclusion that there

       was a reasonable probability that the conditions that resulted in R.P.’s

       placement outside the home would not be remedied. We find no error.


[18]   Mother also argues that there is insufficient evidence that the termination was

       in R.P.’s best interests. In determining whether termination of parental rights is

       in the best interests of a child, the trial court is required to look at the totality of

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019   Page 9 of 11
       the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied. In so doing, the court must subordinate the interests of the parents to

       those of the child involved. Id. Termination of the parent-child relationship is

       proper where the child’s emotional and physical development is threatened. In

       re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s

       historical inability to provide adequate housing, stability and supervision

       coupled with a current inability to provide the same will support a finding that

       continuation of the parent-child relationship is contrary to the child’s best

       interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

       Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

       denied, superseded by rule on other grounds). Further, the testimony of the service

       providers may support a finding that termination is in the child’s best interests.

       McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

       Ct. App. 2003).


[19]   Here, our review of the evidence reveals that Mother has historically been

       unable to provide housing, stability, and supervision for R.P. and was unable to

       provide the same at the time of the termination hearing. In addition, both Case

       Manager Flynn and CASA Liggett testified that termination was in R.P.’s best

       interests. The testimony of these service providers, as well as the other evidence

       previously discussed, supports the trial court’s conclusion that termination was

       in R.P.’s best interests. 2



       2
[1]     Mother also argues that the trial court abused its discretion in allowing Therapist Zigler to testify that Mother had
       been diagnosed with amphetamine use, cannabis use, alcohol use and anxiety disorders. The admission and exclusion

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019                        Page 10 of 11
[20]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[21]   Affirmed.


       Najam, J., and Altice, J., concur.




       of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for an
       abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial
       court’s decision is clearly against the logic and effect of the facts and circumstances before it. Conley v. State, 972
       N.E.2d 864, 871 (Ind. 2012), reh’g denied. However, we need not determine whether the trial court abused its
       discretion by admitting Mother’s diagnoses because even if it was erroneous to admit this evidence, any error was
       harmless. “The improper admission of evidence is harmless error when the judgment is supported by substantial
       independent evidence to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence
       contributed to the judgment.” In re E.T., 808 N.E.2d at 639, 645-46 (Ind. 2004). Here, there is overwhelming evidence
       of Mother’s dependence on methamphetamine and marijuana. Further, the trial court’s conclusions of law in support
       of its judgment terminating Mother’s parental rights do not refer to Mother’s alcohol use or anxiety. Moreover, we
       have found substantial independent evidence to satisfy us that there is no substantial likelihood that the questioned
       evidence contributed to the judgment. Any error in the admission of this evidence was therefore harmless.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2152 | February 28, 2019                        Page 11 of 11
