MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Jul 23 2020, 9:21 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
Daniel G. Foote                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 23, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of N.B. (Minor Child);                                    19A-JT-2945
G.B. (Father),                                            Appeal from the Marion Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Marilyn A.
        v.                                                Moores, Judge
                                                          The Honorable Scott B. Stowers,
Indiana Department of Child                               Magistrate
Services,                                                 Trial Court Cause No.
                                                          49D09-1904-JT-439
Appellee-Petitioner,

and

Child Advocates, Inc.,



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020                    Page 1 of 17
      Appellee-Guardian Ad Litem.




      Najam, Judge.


                                         Statement of the Case
[1]   G.B. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor child N.B. (“Child”). Father presents a single dispositive issue for

      our review, namely, whether the Indiana Department of Child Services

      (“DCS”) presented sufficient evidence to support the termination of his parental

      rights. We affirm.


                                   Facts and Procedural History
[2]   Father and M.R. (“Mother”) 1 (collectively, “Parents”) are Child’s parents.

      When Child was born on May 20, 2017, a test on the umbilical cord blood was

      positive for cocaine. Accordingly, DCS filed a petition alleging that Child was

      a child in need of services (“CHINS”) and removed Child from Parents’ care.




      1
        Mother’s parental rights over Child have also been terminated, but Mother does not participate in this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020                    Page 2 of 17
      At an ensuing factfinding hearing, Mother admitted that Child was a CHINS,

      and Father waived his right to a factfinding hearing.


[3]   After the juvenile court found that Child was a CHINS, the court entered a

      dispositional order. The court ordered Father to participate in a home-based

      case management program and follow all recommendations and to submit to

      random drug and alcohol screens. Beginning at the end of 2017 through spring

      of 2018, Father told his case manager that “he did not want to engage in

      services.” Tr. Vol. 2 at 79. Accordingly, in September 2018, the juvenile court

      entered a modified dispositional order, which required Father to engage in

      home-based therapy and to complete a substance abuse assessment and follow

      all treatment recommendations. Again, Father failed to comply.


[4]   In April 2019, DCS filed petitions to terminate Father’s and Mother’s parental

      rights over Child. Following a hearing, the trial court granted the termination

      petitions on November 19, 2019. In support of its order, the trial court entered

      the following relevant findings:


              10. The [C]hild remained in the hospital for approximately two
              (2) months following her birth. During that time, she was very
              small and in an incubator.

              11. Following her discharge from the hospital, [Child] was
              placed in relative care with her paternal grandmother.

              12. The child has been placed in foster care with [C.B.] and
              [R.R.] since January 5, 2018.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 3 of 17
        13. When the child first was placed in foster care, she was very
        small and had asthma and respiratory issues, as well as [a] runny
        nose and rashes.

        14. The foster parents have taken the child to regular medical
        appointments.

        15. When [Child] was first placed with her foster parents, she
        was on a breathing machine three times per day to assist with her
        asthma. She . . . no longer requires a breathing machine.

        16. The child is happy and doing well in foster care. She refers
        to her foster parents as “mom and dad.” This is a pre-adoptive
        placement.

                                                 ***

        18. [Father] has been consistent with parenting time and he sees
        the child twice per week.

                                                 ***

        25. Teresa Marshall of Haven Focused was referred to provide
        home based case management for [Father] in August 2019.

        26. [Father] was not employed when he began working with Ms.
        Marshall. He has since obtained employment.

        27. [Father] has obtained stable housing with working utilities,
        although it is too small to accommodate the child.

        28. [Father] is currently exercising parenting time with the child,
        and such sessions are going well.

        29. [Father] has attended . . . nearly all hearings in [Child’s]
        CHINS case over the past two years. . . .


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 4 of 17
        30. [Father] has missed numerous drug screens.

        31. The [family case manager (“FCM”)] has made appropriate
        referrals to assist the parents in complying with court ordered
        services.

        32. Home based case management was closed out in spring 2018
        when [Father] stated that he didn’t want to engage.

        33. After [Father] expressed a desire to re-engage, the FCM re-
        referred home based case management to [Father] in May 2018.

                                                 ***

        36. Weldon Koech of Haven Focused was referred to provide
        home based therapy for [Father] in September 2018.

        37. [Father] disclosed to Mr. Koech that he struggled with
        marijuana usage and that he began using daily following his
        involvement in a car accident.

        38. [Father] agreed to stop smoking marijuana and promised
        Mr. Koech that he would submit clean screens. However, he did
        not follow through.

        39. Mr. Koech recommended that [Father] complete a “dual
        diagnosis” program at Gallahue in January 2019, to address his
        marijuana usage.

        40. In March 2019, [Father] went to an intake session at
        Gallahue and Mr. Koech discharged [Father] from home based
        therapy because he needed a higher level of care, specifically,
        dual diagnosis.

                                                 ***



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 5 of 17
        42. [Father] agreed to complete a substance abuse assessment.
        However, he failed to follow through.

        43. The FCM repeatedly discussed with [Father] the importance
        of completing services and submitting clean drug screens.

        44. Despite these reminders and admonishments, [Father]
        continued to miss drug screens and submit[ted] positive screens,
        including a positive screen on the day of the September 25,
        2019[,] trial setting.

        45. [Father]’s treatment team has recommended that [Father]
        progress to unsupervised parenting time with the child upon the
        submission of three (3) consecutive clean screens. [Father] has
        been unable to do so.

                                                 ***

        48. Jacqueline Lentz of Community Health Network was
        referred to provide therapy for [Father] and conducted an intake
        assessment on April 22, 2019.

        49. [Father] admitted to Ms. Lentz daily marijuana usage since
        he was fifteen years old.

        50. [Father] attributed his marijuana use to chronic pain from a
        car accident.

        51. [Father] was diagnosed with Major Depressive Disorder and
        Cannabis Disorder.

        52. [Father] had been prescribed Zoloft for his depression, but
        was not taking the medication at the time of his intake with Ms.
        Lentz.

        53. Ms. Lentz recommended Dual Diagnosis Group to treat
        mental health and substance abuse usage.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 6 of 17
        54. [Father] was to appear at the group sessions three times per
        week and to see Ms. Lentz monthly.

        55. [Father] never appeared at the Dual Diagnosis Group, and
        on May 6, 2019, he was unsuccessfully discharged for non-
        participation.

        56. Jordan Snoddy of Families First provided intensive
        outpatient (“IOP”) group treatment to [Father] beginning in
        November 2018.

        57. Ms. Snoddy’s IOP program consisted of 24 group sessions as
        well as weekly drug screens.

        58. [Father] attended Ms. Snoddy’s program regularly.
        However, he had nine (9) absences, seven (7) of which were
        unexcused.

        59. Ms. Snoddy’s IOP program had a policy in which three (3)
        absences, either excused or unexcused, would result in discharge
        from the program.

        60. Ms. Snoddy also recommended that [Father] participate in a
        dual diagnosis program.

        61. [Father] engaged with Ms. Snoddy initially. However, as
        time went on, his engagement decreased and he became bored
        with the program.

        62. [Father] was discharged from Ms. Snoddy’s IOP program in
        March 2019 without completing the IOP program or the
        aftercare program.

                                                 ***



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 7 of 17
        76. Debbrena Curtis of Haven Focused has . . . provided home
        based case management and supervised parenting time to
        [Father] for approximately 18 months, until the summer of 2019.

        77. Although [Father] was appropriate with the child during his
        time working with Ms. Curtis, he never progressed to
        unsupervised parenting time.

        78. The child had been removed from her parents’ care and
        custody for at least six (6) months pursuant to a dispositional
        decree prior to this Termination Action being filed on April 6,
        2019.

                                                 ***

        81. There is a reasonable probability that the conditions that
        resulted in the child’s removal and continued placement outside
        of the home will not be remedied by her parents. [Mother] and
        [Father] have had over two years to put forth an effort and have
        not done so. . . . [Father] continues to use marijuana, and he did
        not successfully complete substance abuse treatment. He also
        failed to attend dual diagnosis assessment. He was advised that
        he would progress to unsupervised parenting time upon the
        submission of three consecutive drug screens and was unable to
        comply.

        82. Continuation of the parent-child relationship poses a threat
        to the child’s well-being in that it would serve as a barrier for her
        obtaining permanency through an adoption when her parents
        are unable and unwilling to provide permanency and parent.
        The child is thriving in her current placement.

        83. Termination of the parent-child relationship[s] is in the
        child’s best interests. Termination would allow her to be adopted
        into a stable and permanent home where her needs will be safely
        met.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 8 of 17
              84. There exists a satisfactory plan for the future care and
              treatment of the child, that being adoption.


      Appellant’s App. Vol. 2 at 17-20. Thus, the juvenile court terminated Father’s

      parental rights over Child. This appeal ensued.


                                      Discussion and Decision
                                             Standard of Review

[5]   Father contends that the trial court erred when it terminated his parental rights.

      We begin our review of this issue by acknowledging that “[t]he traditional right

      of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

      denied. However, a trial court must subordinate the interests of the parents to

      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

      832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

      proper where a child’s emotional and physical development is threatened. Id.

      Although the right to raise one’s own child should not be terminated solely

      because there is a better home available for the child, parental rights may be

      terminated when a parent is unable or unwilling to meet his or her parental

      responsibilities. Id. at 836.


[6]   As relevant here, before an involuntary termination of parental rights can occur

      in Indiana, DCS is required to allege and prove:


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 9 of 17
              (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[; or]

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

                                                       ***

              (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) (2020). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


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

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

      Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

      denied. Instead, we consider only the evidence and reasonable inferences that

      are most favorable to the judgment. Id. Moreover, in deference to the trial

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

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


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 10 of 17
      Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

      Ct. App. 1999), trans. denied.


[8]   Here, in terminating Father’s parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).

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

      determine whether the findings support the judgment. Id. “Findings are clearly

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

      directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If

      the evidence and inferences support the trial court’s decision, we must affirm.

      In re L.S., 717 N.E.2d at 208.


[9]   On appeal, Father contends that the juvenile court’s finding that his home is too

      small to accommodate Child is unsupported by the evidence, and he asserts that

      “Father’s use of THC” does not support termination of his parental rights.

      Appellant’s Br. at 20. Father also contends that the trial court erred when it

      concluded that: (1) the conditions that resulted in Child’s removal and the

      reasons for her placement outside of his home will not be remedied; (2) there is

      a reasonable probability that the continuation of the parent-child relationship

      poses a threat to the well-being of Child; and (3) termination is in Child’s best

      interests. However, as Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

      disjunctive, we need not address the issue of whether there is a reasonable

      probability that the continuation of the parent-child relationship poses a threat

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 11 of 17
       to the well-being of Child. We otherwise address each of Father’s contentions

       in turn.


                                             Size of Father’s Home

[10]   Father first contends that the juvenile court erred when it found that his home is

       “‘too small to accommodate’” Child. Appellant’s Br. at 19 (quoting

       Appellant’s App. Vol. 2 at 92). In support, Father directs us to the testimony of

       three witnesses stating that his one-bedroom apartment was appropriate for him

       and Child. However, as the State points out, Theresa Marshall, Father’s case

       manager, testified that Father “wanted to look for an apartment with more

       bedroom[s].” Tr. Vol. 2 at 58. Thus, the State maintains that the juvenile court

       was entitled to conclude that Father’s one-bedroom apartment was too small

       for Father and Child. In any event, even assuming the court erred when it so

       found, any error was harmless. As this Court has held, where an erroneous

       finding is not the “sole support for any conclusion of law necessary to sustain

       the judgment,” it is “harmless surplusage” and not reversible error. Karma W.

       v. Marion Cty. Dep’t of Child Servs. (In re B.J.), 879 N.E.2d 7, 20 (Ind. Ct. App.

       2008), trans. denied.       Here, there is no question, and Father does not allege,

       that the court’s finding that his apartment was too small is not the sole support

       for any conclusion of law. Thus, any error was harmless.


                                          Father’s Use of Marijuana

[11]   Father next contends that, because DCS did not present evidence “to show how

       Father’s use of THC has adversely affected [Child] or his ability to parent,”


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 12 of 17
       Father’s use of marijuana does not support termination of his parental rights.

       Appellant’s Br. at 28 (emphasis original). Father maintains that, to the

       contrary, the undisputed evidence shows that Father’s marijuana use had no

       impact on Child. However, Father does not challenge any of the court’s

       findings with respect to his marijuana use. As the State points out, Father’s

       contention on this issue is merely a request that we reweigh the evidence, which

       we cannot do.


[12]   Father attempts to analogize his use of marijuana to that of parents in cases

       where our courts have held that proof of the occasional use of marijuana

       without any showing that a child is endangered thereby is not grounds for a

       CHINS determination. See Appellant’s Br. at 27. But Father ignores the “dual

       diagnosis” he received, which means that he has “mental health and substance[-

       ]related issues” that are connected. Tr. Vol. 2 at 122. And “[i]ndividuals

       diagnosed with [a dual diagnosis] face greater consequences from substance

       abuse compared to those patients diagnosed with only a mental illness[.]”

       Kathryn Hryb et al., Letter to the Editor, A Call for Standardized Definition of Dual

       Diagnosis, Psychiatry, Sept. 2007, at 15-16, https://www.ncbi.nlm.nih.gov/pmc

       /articles/PMC2880934/pdf/PE_4_9_15.pdf. In other words, where, as here,

       there is evidence of comorbidity, Father’s marijuana use is not insignificant and

       not analogous to that of the parents in the cases he cites. Father has not

       demonstrated any error on this issue.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 13 of 17
                     Reasons for Child’s Placement Outside of Father’s Home

[13]   Father contends that DCS did not present sufficient evidence to prove that the

       reasons for Child’s placement outside of his home will not be remedied. This

       court has clarified that, given the wording of the statute, it is not just the basis

       for the initial removal of the child that may be considered for purposes of

       determining whether a parent’s rights should be terminated, but also any basis

       resulting in the continued placement outside of a parent’s home. Inkenhaus v.

       Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct.

       App. 2005), trans. denied. Here, the trial court properly considered the

       conditions leading to the continued placement outside of Father’s home,

       including Father’s failure to address either his substance abuse or mental health

       issues. The court observed that Father did not participate in the mental health

       services that were recommended following his psychological evaluation.


[14]   We hold that the evidence supports the trial court’s findings and conclusion.

       To determine whether there is a reasonable probability that the reasons for

       Child’s continued placement outside of Father’s home will not be remedied, the

       trial court should judge Father’s fitness to care for Child at the time of the

       termination hearing, taking into consideration evidence of changed conditions.

       See E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014).

       However, the court must also “evaluate the parent’s habitual patterns of

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

       child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct.

       App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 14 of 17
       have properly considered 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. Moreover, DCS is not required to rule

       out all possibilities of change; rather, it need establish only that there is a

       reasonable probability the parent’s behavior will not change. Id.


[15]   The trial court found, and the evidence supports, that: Father has a history of

       substance abuse and mental illness; Father does not take medication prescribed

       for his depression; Father “never appeared at the Dual Diagnosis Group” that

       was recommended to treat his substance abuse and mental illness and was

       “discharged for non-participation”; and Father needed to show only three

       consecutive clean drug screens in order to transition to unsupervised parenting

       time with Child, but he was unable to do that. Appellant’s App. Vol. 2 at 94.

       Father’s argument on appeal is simply an invitation for this Court to reweigh

       the evidence and judge the credibility of the witnesses, which we cannot do.

       Based on the totality of the circumstances, we hold that the trial court’s findings

       support its conclusion that the conditions that resulted in Child’s removal and

       the reasons for her placement outside of his home will not be remedied.


                                                   Best Interests

[16]   Father also contends that the trial court erred when it concluded that

       termination of his parental rights is in Child’s best interests. In determining

       what is in a child’s best interests, a juvenile court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. A.S. v. Ind.

       Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 15 of 17
       parent’s historical inability to provide “adequate housing, stability, and

       supervision,” in addition to the parent’s current inability to do so, supports

       finding termination of parental rights is in the best interests of the child. Id.


[17]   When making its decision, the court must subordinate the interests of the

       parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),

       906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a

       child is irreversibly harmed before terminating the parent-child relationship.”

       Id. Moreover, this Court has previously held that recommendations of the

       family case manager and court-appointed advocate to terminate parental rights,

       coupled with evidence that the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id.


[18]   Father asserts that, as one witness testified, “[g]iven more time, . . . Father not

       only could complete any remaining services, but that he should be given more

       time to do so.” Appellant’s Br. at 33 (emphases original). But Father ignores

       the fact that he had two years from the time DCS filed the CHINS petition until

       the final hearing to comply with services. He gives no explanation why two

       years was not enough time to be assessed and participate in appropriate

       treatment for his substance abuse and mental illness.


[19]   As the trial court’s findings demonstrate, Father has not shown that he is

       capable of parenting Child. Other than his substantial compliance with

       supervised visits with Child, Father did not complete the court-ordered services.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 16 of 17
       Child has lived with her foster parents since January 2018, which is a pre-

       adoptive home, and she is bonded and thriving. Both the FCM and the CASA

       recommended termination of Father’s parental rights. Given the totality of the

       evidence, Father cannot show that the trial court erred when it concluded that

       termination of his rights was in Child’s best interests.


[20]   Affirmed.


       Bradford, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2945 | July 23, 2020   Page 17 of 17
