MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Dec 02 2015, 8:32 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Involuntary                                    December 2, 2015
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of:                                         54A05-1506-JT-743
Au.R. and Ay.R. (Minor                                   Appeal from the Montgomery
Children)                                                Circuit Court
                                                         The Honorable Harry A. Siamas,
and                                                      Judge
R.W. (Mother),                                           Trial Court Cause Nos.
Appellant-Respondent,                                    54C01-1501-JT-18
                                                         54C01-1501-JT-19
        v.

Indiana Department of Child
Services,
Appellee-Petitioner.


Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015   Page 1 of 16
      Mathias, Judge.


[1]   R.W. (“Mother”) appeals the order of the Montgomery Circuit Court

      terminating her parental rights to her two minor children, Au.R. (“Son”) and

      Ay.R. (“Daughter”). On appeal, Mother presents two issues: (1) whether the

      trial court erred in admitting testimony of an Indiana Department of Child

      Services (“the DCS”) caseworker that, in her opinion, Mother posed a threat to

      the wellbeing of the children; and (2) whether the trial court’s decision to

      terminate Mother’s parental rights was supported by sufficient evidence.


[2]   We affirm.


                                    Facts and Procedural History

[3]   As Mother does not challenge the trial court’s findings of fact, we set forth the

      facts as found by the court:


              1. [Daughter] was born [in] 2004. [Son] was born [in] 2008.
              Their parents are [Mother] and A.R. A.R. was murdered in
              August 2012.

              2. On December 9, 2013, the DCS were called to the Riviera
              Motel in Crawfordsville to assist Crawfordsville police. The
              police were investigating a counterfeiting operation at that
              location. [Mother] and her boyfriend J.M. had been living at the
              motel for about three weeks along with [Daughter] and [Son].
              [Daughter and Son] had not been attending school. The motel
              room was filled with boxes of merchandise which had been
              purchased with counterfeit money. A large amount of counterfeit
              money was found in the motel room. The children’s clothes were
              in Tupperware tubs. Drug paraphernalia for methamphetamine
              use was found in the motel room and some drug paraphernalia

      Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015   Page 2 of 16
        was found mixed in with the children’s clothes.
        Methamphetamine, heroin, hashish and Suboxone was found in
        the motel room. The children had head lice. The children were
        fearful. [Mother] had been using methamphetamine and heroin
        daily for at least six weeks prior to December 9, 2013. She was
        smoking methamphetamine in the motel bathroom with the
        children in the next room when the police knocked on the door
        of the room on December 9th. She tested positive for
        methamphetamine when given a drug test. [Mother] had sores on
        her body and was under the influence of methamphetamine on
        December 9th.

        3. The DCS had done previous investigations of [Mother] and
        her care of the children. In January 2011, [Mother] was found
        unresponsive from a drug overdose in her home in Marion
        County. The children were present at the time.

        4. [Mother] has a history of abusing controlled substances. She
        had treatment at Harbor Lights for two or three months and was
        able to maintain sobriety for a period of time before relapsing
        into illegal drug use again.

        5. [Mother] was convicted of possession of methamphetamine,
        a class B felony and forgery a class C felony in July 2014. She
        received a ten year sentence for the possession of
        methamphetamine conviction. Five years of the sentence were
        executed and five years were suspended. She received a four year
        sentence for the forgery conviction. All four years were
        suspended. At the time of the termination hearing, [Mother] was
        incarcerated at the Indiana Department of Correction[] for these
        convictions. [Mother]’s earliest release date is either December of
        2015 or February 2016 depending on sentence cuts she may
        receive for completion of programs in IDOC. [Mother] has
        pending criminal charges in Boone County that she believes will
        be resolved by plea agreement.

        6. On December 9, 2013, the DCS took both children into
        protective custody and placed them with their maternal

Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015   Page 3 of 16
        grandmother. The children have been removed from their mother
        who was the custodian of both children from that date to the date
        of the hearing on the petition to terminate [Mother]’s parental
        rights.

        7. On December 11, 2013, the DCS filed its “Verified Petition
        Alleging Child in Need of Services” as to both [Daughter] and
        [Son].

        8. On January 28, 2014, a fact finding hearing was held and
        the Court adjudicated both children to be in need of services.

        9. On February 24, 2014, the Court held a dispositional
        hearing. The Court ordered that both children were made wards
        of the DCS. The children continued in their placement with their
        maternal grandmother and her husband. The Court ordered the
        children to have a mental health evaluation. No services were
        offered to [Mother] since she was in jail.

        10. The children have remained in placement with their
        maternal grandmother and her husband since December 9, 2013.

        11. On June 16, 2014, a review hearing was held by the court.
        The Court ordered that the children continue to be placed with
        their maternal grandmother with services offered to the children
        that included mental health counseling through Cummins
        Mental Health. No services were offered to [Mother] since she
        was incarcerated in jail.

        12. On December 5, 2014, the court held a permanency hearing.
        The children’s placement and counseling services were
        continued. The Court ordered that the permanency plan be
        changed to a concurrent plan of reunification and adoption.

        13. [Daughter] suffers from post traumatic stress disorder and
        episodic depressive disorder. [Daughter]’s removal from her
        mother is the traumatic event that causes her PTSD. She receives
        weekly therapy for these conditions.


Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015   Page 4 of 16
              14. [Son] suffers from post traumatic stress disorder and reactive
              attachment disorder. His PTSD is caused by his father’s death,
              removal from his mother and the stress caused by prison visits
              with his mother. [Son] has outbursts at school that are getting
              worse. These outbursts occur around the time of his prison visits
              with this mother. [Son] was not nurtured prior to his removal
              from his mother. He is bonded with his grandmother. [Son]
              receives weekly therapy for these mental health issues. [Son] will
              be held back in his current school grade.

              15. Both children need the stability and support that they
              currently receive in their grandmother’s home. The children have
              lived with their maternal grandmother prior to December 2013.
              They lived with her from May 2012 to January 2013. When
              [Son] was two years old he lived with maternal grandmother for
              two months while [Mother] and his father were in drug rehab.

              16. The DCS plan post termination is adoption of the children.
              While maternal grandmother does not believe termination of
              [Mother]’s parental rights is in the best interests of the children,
              she would adopt them both . . . if necessary. [Grandmother] and
              her husband are in their 60’s and she is concerned about both
              their advanced age to adopt and the financial burden that
              adoption might cause herself and her husband.

              17. [Mother] is participating in substance abuse and parenting
              programs while she is incarcerated. She has received minor
              misconduct reports while she is incarcerated. She plans to live
              with a cousin upon her release from IDOC. She wants to reunite
              with her children.


      Appellant’s App. pp. 5-8.


[4]   As noted by the trial court, the DCS filed its petition alleging that the Children

      were in need of services (“CHINS”) on December 11, 2013. The trial court held

      a detention hearing on December 11, 2013, and ordered the children to be

      Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015   Page 5 of 16
      placed with their maternal grandmother (“Grandmother”). The court found the

      Children to be CHINS after a January 24, 2014 factfinding hearing. At the

      dispositional hearing held on February 24, 2014, the trial court ordered Mother

      to contact DCS for services upon her release from incarceration. The court also

      ordered the Children to have visitation with Mother while she was incarcerated.


[5]   As of the June 14, 2014, review hearing, the court determined that Mother had

      not improved her parenting abilities and that she could not participate in

      services due to her continued incarceration. Then, at the December 5, 2014,

      permanency hearing, the trial court approved of a concurrent plan of

      reunification and adoption.

[6]   On January 23, 2015, the DCS filed petitions to terminate Mother’s parental

      rights to the Children. The trial court held an evidentiary hearing on the matter

      on May 28, 2015. On June 23, 2015, the trial court issued its findings of fact

      and conclusions of law, ordering that Mother’s parental rights be terminated.

      Mother now appeals.


                                   Termination of Parental Rights

[7]   “The purpose of terminating parental rights is not to punish parents but to

      protect their children. Although parental rights have a constitutional dimension,

      the law allows for their termination when parties are unable or unwilling to

      meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.

      App. 2004) (citation omitted). Indeed, parental interests “must be subordinated




      Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015   Page 6 of 16
      to the children’s interest[s]” in determining the proper disposition of a petition

      to terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009).


[8]   Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental

      rights must meet the following relevant requirements:

              (2) The petition must allege:
                   (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.

[9]   Section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, the trial court

      is required to find that only one prong of subsection 2(b)(2)(B) has been

      established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220

      (Ind. Ct. App. 2010). The DCS must prove “each and every element” by clear

      and convincing evidence. G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2.

      Clear and convincing evidence need not establish that the continued custody of

      the parents is wholly inadequate for the child’s very survival. Bester v. Lake Cnty.

      Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, it is

      Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015   Page 7 of 16
       sufficient to show by clear and convincing evidence that the child’s emotional

       development and physical development are put at risk by the parent’s custody.

       Id. If the court finds that the allegations in a petition are true, the court shall

       terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

                                          I. Admission of Evidence

[10]   Mother first argues that the trial court erred in the admission of certain

       testimony. In addressing this argument, we observe that questions regarding the

       admission of evidence are left to the sound discretion of the trial court, and we

       will not reverse that decision except for an abuse of that discretion. In re the

       Involuntary Termination of the Parent Child Relationship of A.H., 832 N.E.2d 563,

       567 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion occurs when the

       trial court’s decision is against the logic and effect of the facts and

       circumstances before it. Id.


[11]   Here, Mother takes issue with the admission of certain testimony from DCS

       case manager,1 Itzayno Prieto (“Prieto”). Prieto testified that she had an

       Associate’s degree in “pub science and criminal justice” and a Bachelor’s

       Degree in liberal arts from Purdue University, with “some of her background . .

       . in child development and psychology, sociology.” Tr. p. 86. When asked if she

       thought Mother posed a threat to the Children’s well being, Mother’s counsel




       1
        Prieto testified that her current title is “permanency worker,” which used to be referred to as a family case
       manager or ongoing case manager.

       Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015         Page 8 of 16
       objected based on Prieto’s lack of education and expertise in evaluating threats.

       The trial court overruled the objection, and Prieto testified that Mother was a

       threat to the Children’s well being because:


               Again, this was a conscious decision by [Mother]. We did not
               land her here. Her actions landed her in a situation. She is
               incarcerated because of the consequences of her actions. She
               knowingly put her children in that situation with the
               paraphernalia in their clothes; she knowingly, willingly did that.
               She could have made arrangements for her children, but she did
               not. So we had to step in and we have been overseeing the care,
               control and placement of her children this whole time.


       Tr. pp. 95-96.

[12]   On appeal, Mother claims that this evidence should have been excluded under

       Indiana Evidence Rule 701. This rule provides:

               If a witness is not testifying as an expert, testimony in the form of
               an opinion is limited to one that is:
                   (a) rationally based on the witness's perception; and
                   (b) helpful to a clear understanding of the witness’s testimony
                   or to a determination of a fact in issue.


[13]   Mother argues that Prieto’s testimony was not based on her own observations

       of Mother and therefore fails under subsection 701(a). Mother notes that the

       Children were removed from her care in December 2013, whereas Prieto was

       not assigned to the case until June 2014. She also notes that Prieto only spoke

       with Mother twice, once briefly in a holding room and once over the telephone.

       She also claims that the testimony was inadmissible because it was not helpful

       Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015   Page 9 of 16
       to a clear understanding of the witness’s testimony or to a determination of a

       fact at issue.

[14]   However, even if we assume arguendo that the testimony was inadmissible, its

       admission was at most harmless error. The improper admission of evidence is

       harmless error when the trial court’s judgment is supported by substantial

       independent evidence to satisfy the reviewing court that no substantial

       likelihood exists that the questioned evidence contributed to the judgment. B.H.

       v. Indiana Dep’t of Child Servs., 989 N.E.2d 355, 363 (Ind. Ct. App. 2013).


[15]   Mother claims that Prieto’s testimony was prejudicial to her because the

       testimony specifically addressed one of the factors the DCS had to establish, i.e.

       whether a reasonable probability exists that the continuation of the parent-child

       relationship poses a threat to the well being of the child. See I.C. § 31-35-2-

       4(b)(2)(B).


[16]   The trial court, however, did not base its termination decision on a finding of a

       threat to the well being of the Children. As noted above, the termination statute

       is written in the disjunctive and the trial court is required to find that only one

       prong of subsection 2(b)(2)(B) has been established by clear and convincing

       evidence. In re A.K., 924 N.E.2d at 220. The trial court here based its

       termination decision on its conclusion a reasonable probability exists that the

       conditions that resulted in the children’s removal would not be remedied, not

       on a conclusion that Mother poses a threat to the well being of the children. See

       Appellant’s App. p. 10.


       Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 10 of 16
[17]   Because the trial court did not terminate Mother’s parental rights based upon

       the “threat” prong of subsection 2(b)(2)(B), the admission of Prieto’s testimony

       regarding her opinion that Mother posed a threat to the well being of the

       Children was at most harmless error. See B.H., 989 N.E.2d at 363 (concluding

       that erroneous admission of progress reports into evidence was harmless where

       the trial court’s termination order did not reference the reports or their content).

                                       II. Sufficiency of the Evidence

[18]   Mother also claims that the trial court’s decision to terminate her parental rights

       was not supported by sufficient evidence. We have a highly deferential standard

       of review in cases involving the termination of parental rights. In re D.B., 942

       N.E.2d 867, 871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor

       assess witness credibility. Id. We consider only the evidence favorable to the

       trial court’s judgment and the reasonable inferences to be drawn from this

       evidence. Id. Where, as here, the trial court enters findings of fact and

       conclusions of law in its termination of parental rights,2 we apply a two-tiered

       standard of review. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156

       (Ind. Ct. App. 2013), trans. denied. We first determine whether the evidence

       supports the findings; we then determine whether the findings support the

       judgment. Id. Findings are clearly erroneous only when the record contains no



       2
          Although trial courts are not statutorily required to enter findings of fact and conclusions of law when
       terminating parental rights, we have nevertheless held that, given the constitutional import of such a decision,
       trial courts must “enter findings of fact that support the entry of the conclusions called for by Indiana statute
       and the common law” when issuing an order terminating parental rights. In re A.K., 924 N.E.2d 212, 220
       (Ind. Ct. App. 2010).

       Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 11 of 16
       facts to support them either directly or by inference. Id. If the evidence and

       inferences support the trial court’s decision, we must affirm. Id. Likewise, we

       will set aside the trial court’s judgment terminating a parent-child relationship

       only if it is “clearly erroneous.” Id. In this context, “clear error” is that which

       “leaves us with a definite and firm conviction that a mistake has been made.”

       Id. (quoting J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44

       (Ind. Ct. App. 2004)).

[19]   Here, Mother contends that the DCS failed to meet its burden with regard to

       the elements set forth in Indiana Code section 31-35-2-4(2)(B)(2) and (C). We

       address both of these arguments in turn.


       A. Conditions That Led to the Children’s Removal

[20]   The trial court concluded that a reasonable probability exists the conditions

       which led to the Children’s removal were unlikely to be remedied. When

       making a determination as to whether a reasonable probability exists that the

       conditions resulting in a child’s removal or continued placement outside of a

       parent’s care will not be remedied, the trial court must judge a parent’s fitness to

       care for her child at the time of the termination hearing while also taking into

       consideration evidence of changed circumstances. A.D.S., 987 N.E.2d at 1156-

       57. The trial court is also required to consider the parent’s habitual patterns of

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

       the child. Id. at 1157. The trial court 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. Id. The trial court may
       Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 12 of 16
       also consider the services offered to the parent by the DCS and the parent’s

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

       Id. The DCS is not required to provide evidence ruling out all possibilities of

       change. Id. Instead, it needs to establish only that a “reasonable probability”

       exists that the parent’s behavior will not change. Id.


[21]   Considering only the facts favorable to the trial court’s judgment, we cannot say

       that the trial court clearly erred in determining that a reasonable probability

       exists that Mother’s behavior would not change. Mother was thirty-seven years

       old at the time of the termination hearing and has a long history of substance

       abuse, beginning when she was only fifteen years old. Throughout her adult

       life, Mother has abused cocaine, opiates, and methamphetamine. Importantly,

       most of Mother’s drug use occurred after her children were born. Mother’s drug

       use led to the DCS becoming involved in 2011, when Mother overdosed and

       the Children first lived with their Grandmother. Although Mother sought

       treatment after the overdose and temporarily maintained sobriety, she began

       using again. When the Children returned to Mother’s care, Grandmother was

       so concerned that she contacted the DCS regarding her daughter’s drug use.

       Shortly thereafter, the DCS was called to the scene where Mother was using

       methamphetamine in a hotel room containing drug paraphernalia,

       counterfeiting equipment, and counterfeit cash. Some of the paraphernalia was

       even stored with the Children’s clothing. In fact, Daughter was even able to

       direct the police to where Mother kept her drugs.




       Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 13 of 16
[22]   On appeal, Mother refers us to her testimony in which she claimed to have

       participated in services while incarcerated and to Grandmother’s testimony that

       Mother had changed. The trial court in fact considered Mother’s participation

       in services while incarcerated. However, upon reviewing Mother’s past

       behavior, the court came to the conclusion that a reasonable probability exists

       that Mother’s drug abuse problem would continue. Under the facts and

       circumstances of this case, we cannot say that this conclusion was clearly

       erroneous.


       B. Best Interests of the Children

[23]   Mother also challenges the conclusion of the trial court that termination of her

       parental rights is in the best interests of the Children. In determining what is in

       the best interests of a child, the trial court must look beyond the factors

       identified by the DCS and look to the totality of the evidence. A.D.S., 987

       N.E.2d at 1158. In so doing, the court must subordinate the interests of the

       parent to those of the children. Id. The court need not wait until the children are

       irreversibly harmed before terminating the parent-child relationship. Id. A

       recommendation by both the case manager or child advocate to terminate

       parental rights is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id. at 1158-59. Permanency is a

       central consideration in determining the best interests of a child. Id. at 1159.


[24]   Here, Prieto and the court-appointed special advocate (“CASA”) both testified

       that termination of the parent-child relationship would be in the Children’s best

       interests. The CASA explained that the Children needed a stable and secure
       Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 14 of 16
       home environment. Also, the Children’s therapist testified that both Children

       needed stability, which they had obtained in Grandmother’s care.

[25]   Mother’s arguments are again little more than a request that we consider the

       evidence not favorable to the trial court’s decision, reweigh the evidence, and

       come to a conclusion opposite that reached by the trial court. However, this is

       not our role as an appellate court. See In re D.B., 942 N.E.2d at 871. The facts

       most favorable to the trial court’s decision show that the Children were

       removed from Mother’s care in December 2013. Mother’s earliest possible

       release date is in December 2015. However, at the time of the termination

       hearing, Mother was also facing pending charges in Boone County. Although

       Mother believed that these charges would be resolved by a plea agreement, this

       had not yet happened, and no evidence in the record indicates what sentence

       Mother will receive in that case. In short, at the time of the hearing, the

       Children had already been removed from Mother’s care for approximately a

       year and a half. Mother’s argument would have us keep the Children in the

       limbo of foster care for at least another six months, and quite possibly longer,

       despite the evidence regarding the Children’s need for stability.

[26]   Further, evidence indicates that the Children were neglected while in Mother’s

       care. Indeed, Son was diagnosed with attachment disorder, which is mostly

       seen in children who are not nurtured at a young age. Son has also had

       outbursts that occurred when he visited Mother in prison. The Children are

       bonded to Grandmother, who also provided care for them at an earlier point in

       their lives when Mother was in drug therapy. In Grandmother’s care, the

       Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 15 of 16
       Children receive weekly therapy to assist them with their mental health and

       behavioral issues. Grandmother, although she did not wish to see Mother’s

       parental rights terminated, testified that she would be willing to adopt the

       Children, if necessary.3

[27]   Again, based on the facts and circumstances of the present case, we are unable

       to conclude that the trial court clearly erred in concluding that termination of

       Mother’s parental rights was in the Children’s best interests.


                                                       Conclusion

[28]   The trial court’s admission of the testimony regarding Mother being a threat to

       the well being of the Children was at most harmless error because the trial court

       did not base its termination decision on this factor. Also, the trial court’s

       decision to terminate Mother’s parental rights is based on sufficient evidence.

[29]   Affirmed.


       Baker, J., and Bailey, J., concur.




       3
         Mother makes no argument regarding a satisfactory plan for the care and treatment of the Children. See
       I.C. § 31-35-2-4(b)(2)(D). Even if she did, the plan for adoption is a satisfactory plan. See In re A.S., 17 N.E.3d
       994, 1007 (Ind. Ct. App. 2014), trans. denied.



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