MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     May 03 2017, 9:42 am
this Memorandum Decision shall not be                                           CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
court except for the purpose of establishing                                     and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana

                                                         Marjorie Newell
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of the                                  May 3, 2017
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of: D.D., N.R., and                         34A05-1612-JT-2878
T.R., Jr. (Minor Children)                               Appeal from the Howard Circuit
                                                         Court
and                                                      The Honorable Lynn Murray,
                                                         Judge
K.R. (Mother) and T.R. (Father),                         Trial Court Cause Nos.
Appellants-Respondents,                                  34C01-1608-JT-249
                                                         34C01-1608-JT-250
        v.                                               34C01-1608-JT-251

Indiana Department of Child
Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017                  Page 1 of 14
      Bradford, Judge.



                                          Case Summary
[1]   Appellants-Respondents K.R. (“Mother”) and T.R. (“Father”) (collectively,

      “Parents”) appeal the juvenile court’s order terminating their parental rights to

      D.D., N.R., and T.R., Jr. (collectively, “the Children”). On September 8, 2014,

      Appellee-Petitioner the Indiana Department of Child Services (“DCS”) filed

      petitions alleging that the Children were children in need of services

      (“CHINS”). Following an evidentiary hearing, the Children were adjudicated

      to be CHINS. Parents, both of whom were incarcerated at the time of the

      CHINS hearing, were ordered to participate in and complete certain services.

      Parents failed to complete the court-ordered services following their releases

      from incarceration.


[2]   DCS filed petitions seeking the termination of Parents’ parental rights to the

      Children on August 18, 2016. Following an evidentiary hearing, the juvenile

      court issued an order granting DCS’s petitions. On appeal, Parents contend

      that DCS did not provide sufficient evidence to support the termination of their

      parental rights. We affirm.



                            Facts and Procedural History
[3]   Father and Mother are the biological parents of D.D., who was born on May

      20, 2003, N.R. who was born on October 2, 2006, and T.R., Jr. who was born

      on December 29, 2011. DCS substantiated claims against Parents for the
      Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 2 of 14
      educational neglect of D.D. and N.R. in December of 2012. DCS subsequently

      substantiated claims of neglect of the Children in August of 2013.


[4]   DCS again became involved with the family on September 14, 2014. Upon

      making contact with the family, a representative of DCS made the following

      observations:


              The home was found to have no running water, no food, no
              means to cook or produce food (i.e. no stove, oven, microwave,
              and refrigerator) and the family was defecating in a bucket in the
              bathroom. The home was in the process of being remodeled and
              presented several health/safety concerns; there was clutter in the
              form of trash, insulation, removed plaster and lathing, power
              tools on the floor, exposed wiring, and various components for
              methamphetamine production were also discovered in the home.
              While the children appeared generally healthy, all three were
              suffering from small bite marks that appeared to be bug bites. It
              was observed that [T.R., Jr.,] was dressed only in athletic shorts
              with no shoes, shirt, underwear or diaper and had blisters on his
              feet that were in the process of healing. The two older children
              had been withdrawn from school in February 2014 and were not
              currently enrolled. While [D.D.] and [N.R.] both reported that
              they were homeschooled, neither child could report on what they
              were currently learning.


      Petitioner’s Ex. 1, p. 1. On this date, Parents were arrested for manufacturing

      methamphetamine, possessing an illegal drug lab, and neglect of a dependent.

      The Children were removed from the home and taken to the hospital for

      examination. Hair samples from D.D. and T.R., Jr. “were found to be positive

      for methamphetamine and amphetamine.” Petitioner’s Ex. 1, p. 2. T.R., Jr.’s

      hair sample “had drug levels consistent with levels of everyday exposure.”

      Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 3 of 14
      Petitioner’s Ex. 1, p. 2. The Children were subsequently placed together in

      foster care.


[5]   DCS filed petitions alleging that the Children were CHINS on September 8,

      2014. Following a fact-finding hearing, the juvenile court found the Children to

      be CHINS on November 3, 2014. Specifically, the juvenile court found as

      follows:


              The Parents stipulate that the [C]hildren are in need of services
              due to their arrest and incarceration. The Intake Officer’s Report
              of Preliminary Inquiry is incorporated. Specifically, on
              September 4, 2014, the Kokomo Police Department (KPD)
              located items used in the manufacturing of methamphetamine in
              the home that the Parents and the [C]hildren were residing in.
              The Parents were arrested on charges for Manufacturing
              Methamphetamine, Illegal Drug Lab, and Neglect of a
              Dependent. The [C]hildren’s Parents knew or should have
              known that illegal substances were being used and manufactured
              at the residence and failed to protect the [C]hildren. Further, the
              home was found to be unsafe and unsanitary for the [C]hildren.


      Petitioner’s Ex. 4, p. 22.


[6]   In a subsequent dispositional order, the juvenile court ordered that Parents

      shall: (1) cooperate with DCS, its Family Case Managers (“FCMs”), and any

      service providers, including but not limited to following their

      recommendations; (2) notify DCS, the FCMs and any service providers in any

      change to their contact information; (3) maintain contact with their assigned

      FCM and service providers, including notifying them of cancellations of

      appointments at least twenty-four hours prior to the scheduled appointment; (4)

      Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 4 of 14
attend, participate in the visitation plan and follow the rules and procedures set

forth by DCS and any service providers coordinating and/or supervising the

visits; (5) submit to random drug and alcohol screens at the discretion of DCS

or its service providers and any unexcused failure to submit to the drug screen

shall be deemed a failed test; (6) attend, participate in and successfully complete

a mental health evaluation and follow all the recommendations of the evaluator

and DCS based on the evaluation, including any after-care programs if deemed

necessary; (7) obtain clean, suitable and stable housing for themselves and their

children and allow DCS and its service providers access to the home; (8) obtain

and maintain gainful employment and provide pay stubs or other evidence to

DCS; (9) attend, participate in and successfully complete a parenting program

and provide proof of completion to DCS and demonstrate effective parenting

skills and abilities in the care of the Children; (10) attend, participate in and

successfully complete a parenting evaluation and follow all of the

recommendations of the evaluator and DCS based on the evaluation; (11)

refrain from all illegal activity and abide by the laws of the State of Indiana and

the United States so as to not jeopardize their ability to care for the Children;

and (12) keep DCS updated as to the status of any pending or current criminal

charges. The trial court further ordered that any visits with the Children shall

be subject to Parents providing DCS with a negative drug and alcohol screen at

the discretion of DCS or the service provider coordinating or supervising the

visitation plan.




Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 5 of 14
[7]   On January 18, 2016, DCS filed petitions seeking the termination of Parents’

      parental rights to the Children. The juvenile court conducted an evidentiary

      hearing on DCS’s petitions on November 14, 2016. During the evidentiary

      hearing, DCS presented evidence indicating that Parents had failed to refrain

      from using illegal drugs. In fact, Parents were incarcerated as of the date of the

      evidentiary hearing because their continued drug use had led the prosecution in

      each of their ongoing criminal cases to seek to revoke their probation. Parents

      had also failed to obtain suitable housing, complete necessary services, or

      consistently communicate with service providers. Given Parents’ failure to

      refrain from using illegal drugs, to obtain suitable housing and to complete

      necessary services, two separate DCS FCMs who had worked with the family

      and the Children’s Court Appointed Special Advocate (“CASA”) concluded

      that termination of Parents’ parental rights was in the Children’s best interests.


[8]   Following the conclusion of the hearing, the juvenile court took the matter

      under advisement. On December 5, 2016, the juvenile court issued an order

      terminating Parents’ parental rights to the Children. This appeal follows.



                                 Discussion and Decision
[9]   Parents contend that the evidence is insufficient to sustain the termination of

      their parental rights to the Children. The Fourteenth Amendment to the United

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

      and raise their children. Bester v. Lake Cnty. Office of Family & Children, 839

      N.E.2d 143, 145 (Ind. 2005). Further, we acknowledge that the parent-child

      Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 6 of 14
       relationship is “one of the most valued relationships of our culture.” Id.

       However, although parental rights are of a constitutional dimension, the law

       allows for the termination of those rights when parents are unable or unwilling

       to meet their responsibility as parents. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct.

       App. 2001), trans. denied. Therefore, parental rights are not absolute and must

       be subordinated to the children’s interests in determining the appropriate

       disposition of a petition to terminate the parent-child relationship. Id.


[10]   The purpose of terminating parental rights is not to punish the parents but to

       protect the children. Id. Termination of parental rights is proper where the

       children’s emotional and physical development is threatened. Id. The juvenile

       court need not wait until the children are irreversibly harmed such that their

       physical, mental, and social development is permanently impaired before

       terminating the parent-child relationship. Id.


[11]   Parents contend that the evidence presented at the evidentiary hearing was

       insufficient to support the juvenile court’s order terminating their parental

       rights. In reviewing termination proceedings on appeal, this court will not

       reweigh the evidence or assess the credibility of the witnesses. In re Involuntary

       Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App.

       2004). We only consider the evidence that supports the juvenile court’s

       decision and reasonable inferences drawn therefrom. Id. Where, as here, the

       juvenile court includes findings of fact and conclusions thereon in its order

       terminating parental rights, our standard of review is two-tiered. Id. First, we



       Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 7 of 14
       must determine whether the evidence supports the findings, and, second,

       whether the findings support the legal conclusions. Id.


[12]   In deference to the juvenile court’s unique position to assess the evidence, we

       set aside the juvenile court’s findings and judgment terminating a parent-child

       relationship only if they are clearly erroneous. Id. A finding of fact is clearly

       erroneous when there are no facts or inferences drawn therefrom to support it.

       Id. A judgment is clearly erroneous only if the legal conclusions made by the

       juvenile court are not supported by its findings of fact, or the conclusions do not

       support the judgment. Id.


[13]   In order to involuntarily terminate parents’ parental rights, DCS must establish

       by clear and convincing evidence that:

               (A) one (1) of the following exists:
                            (i) the child[ren] [have] been removed from the
                     parent[s] for at least six (6) months under a
                     dispositional decree;
                            (ii) a court has entered a finding under IC 31-
                     34-21-5.6 that reasonable efforts for family
                     preservation or reunification are not required,
                     including a description of the court’s finding, the date
                     of the finding, and the manner in which the finding
                     was made; or
                            (iii) the child[ren] [have] been removed from
                     the parent[s]and [have] been under the supervision of
                     a county office of family and children or probation
                     department for at least fifteen (15) months of the
                     most recent twenty-two (22) months, beginning with
                     the date the child[ren] [are] removed from the home
                     as a result of the child[ren] being alleged to be [ ]

       Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 8 of 14
                      child[ren] in need of services or [ ] delinquent
                      child[ren];
               (B) that one (1) of the following is true:
                      (i) There is a reasonable probability that the
                      conditions that resulted in the child[ren]’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[ren].
                      (iii) The child[ren] [have], on two (2) separate
                      occasions, been adjudicated [ ] child[ren] in need of
                      services;
               (C) termination is in the best interests of the child[ren]; and
               (D) there is a satisfactory plan for the care and treatment of the
               child[ren].


       Ind. Code § 31-35-2-4(b)(2). Parents do not dispute that DCS presented

       sufficient evidence to support the first, third, and fourth elements set forth in

       Indiana Code section 31-35-2-4(b). Parents, however, do claim that DCS failed

       to establish that there is a reasonable probability that the conditions that

       resulted in the children’s removal will not be remedied.


                       A. Whether Conditions Will Be Remedied
[14]   On appeal, Parents argue that DCS failed to establish by clear and convincing

       evidence that the conditions leading to the Children’s removal from their home

       would not be remedied. It is well-settled that because Indiana Code section 31-

       35-2-4(b)(2)(B) is written in the disjunctive, the juvenile court need only find

       either that (1) the conditions resulting in removal from or continued placement

       outside the parents’ home will not be remedied, (2) the continuation of the

       Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 9 of 14
       parent-child relationship poses a threat to the children, or (3) the children have

       been adjudicated CHINS on two separate occasions. See In re C.C., 788 N.E.2d

       847, 854 (Ind. Ct. App. 2003), trans. denied. Therefore, where the juvenile court

       determines one of the above-mentioned factors has been proven and there is

       sufficient evidence in the record supporting the juvenile court’s determination,

       it is not necessary for DCS to prove, or for the juvenile court to find, either of

       the other two factors listed in Indiana Code section 31-34-2-4(b)(2)(B). See

       generally In re S.P.H., 806 N.E.2d at 882 (providing that because Indiana Code

       section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS need only prove

       and the juvenile court need only find that one of the factors listed in that sub-

       section is true).


[15]   We must note that Parents do not challenge the trial court’s determination that

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

       Consequently, Parents have, in effect, conceded that the record contains

       sufficient proof to satisfy the requirements of Indiana Code section 31-35-2-

       4(b)(2)(B). However, given that this case involves the permanent termination of

       Parents’ parental rights to the Children, we will nonetheless address Parents’

       claim relating to the sufficiency of the evidence to prove that the conditions

       which led the Children’s removal will not be remedied.


[16]   In order to determine whether the conditions will be remedied, the juvenile

       court should first determine what conditions led DCS to place the children

       outside of their parents’ care or to continue the children’s placement outside

       their parents’ care, and, second, whether there is a reasonable probability that

       Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 10 of 14
       those conditions will be remedied. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct.

       App. 2005), trans. denied; In re S.P.H., 806 N.E.2d at 882. When assessing

       whether a reasonable probability exists that the conditions justifying the

       children’s removal or continued placement outside their parents’ care will not

       be remedied, the juvenile court must judge the parents’ fitness to care for the

       children at the time of the termination hearing, taking into consideration

       evidence of changed conditions. In re A.N.J., 690 N.E.2d 716, 721 (Ind. Ct.

       App. 1997). The juvenile court must also evaluate the parents’ habitual

       patterns of conduct to determine whether there is a substantial probability of

       future neglect or deprivation. Id.


[17]   A juvenile court may properly consider evidence of the parents’ prior criminal

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

       and lack of adequate employment and housing. McBride v. Monroe Cnty. Office of

       Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a

       juvenile court “‘can reasonably consider the services offered by [DCS] to the

       parent and the parent’s response to those services.’” Id. (quoting In re A.C.C.,

       682 N.E.2d 542, 544 (Ind. Ct. App. 1997)). The evidence presented by DCS

       “need not rule out all possibilities of change; rather, DCS need establish only

       that there is a reasonable probability that the [parents’] behavior will not

       change.” In re Involuntary Termination of Parent-Child Relationship of Kay L., 867

       N.E.2d 236, 242 (Ind. Ct. App. 2007).


[18]   In the instant matter, the juvenile court determined that DCS presented

       sufficient evidence to prove that it was unlikely that the reasons for the

       Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 11 of 14
Children’s removal from and continued placement outside of Parents’ care

would be remedied, and upon review, we conclude that the juvenile court’s

determination in this respect is supported by the record. In support of its

determination, the juvenile court found as follows:


        The Court finds by clear and convincing evidence that it is
        reasonably probable that the conditions that led to the removal
        and that led to continued placement outside the home, namely
        the parents’ inability to provide the [Children] with a safe,
        suitable home with adequate supervision and free of substance
        abuse, will not be remedied to the degree that they will be able to
        provide the [Children] with the nurturing, stable, and appropriate
        care and environment that they require on a long term basis.
        After well over a year outside of incarceration, the parents failed
        to work towards lasting sobriety and stability, and both parents
        find themselves back in the criminal justice system. The children
        should not have to wait to have a secure, stable and safe
        environment in which to live. The court need not wait until [the
        Children are] irreversibly harmed such that [their] physical,
        mental and social development is permanently impaired before
        terminating a parent-child relationship. [In Re M.M., 733 N.E.2d
        6 (Ind. Ct. App. 2000)].


Appellants’ App. Vol. II Confidential, pp. 26-27. This finding is consistent with

the juvenile court’s other findings relating to Parents’ failure to acquire suitable

housing, inability to provide appropriate care for the Children, and failure to

maintain their sobriety. The juvenile court concluded that DCS had established

by clear and convincing evidence that the reasons for the Children’s removal

from and continued placement outside Parents’ home would not be remedied.




Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 12 of 14
[19]   In claiming that the evidence was insufficient to support the juvenile court’s

       order terminating their parental rights, Parents challenge the juvenile court’s

       use of the phrase “independent housing” rather than “suitable housing” in its

       findings. However, regardless of the phrase used by the juvenile court, the

       record clearly demonstrates that as of the date of the evidentiary hearing,

       Parents had failed to acquire suitable housing. Parents challenge to the

       sufficiency of the evidence to support the juvenile court’s finding relating to

       their failure to acquire suitable housing effectively amounts to an invitation for

       this court to reweigh the evidence, which we will not do. See In re S.P.H., 806

       N.E.2d at 879.


[20]   Parents also challenge the sufficiency of the evidence to support the juvenile

       court’s order by claiming that, although the record clearly indicates that Mother

       has failed to remain free of drugs, the trial court in her criminal case allegedly

       found that she should remain on probation despite her relapse into drug use.

       As such, Parents argue that the juvenile court should not consider Mother’s

       relapse to be evidence that the conditions leading to the Children’s removal

       from Parents’ care will not change. However, given the difference in the

       concerns facing the juvenile and trial courts, we find Parents’ argument relating

       to the differing treatment by the courts to be unpersuasive. Again, Parents

       challenge to the sufficiency of the evidence at most amounts to an invitation for

       this court to reassess witness credibility and reweigh the evidence, which we

       will not do. See In re S.P.H., 806 N.E.2d at 879.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 13 of 14
[21]   The records reveal that Parents have demonstrated a pattern of neglect,

       addiction, and criminal behavior. Parents have failed to take any steps which

       would reasonably lead one to believe that they will not continue such behaviors

       in the future. Parents have also failed to take any steps which would indicate

       that they are willing or able to provide the Children with either appropriate care

       or a safe and stable living environment. As such, upon review, we conclude

       that the juvenile court did not err in concluding that the conditions leading to

       the Children’s removal from and continued placement outside Parents’ care

       were unlikely to be remedied. See In re C.M., 675 N.E.2d 1134, 1140 (Ind. Ct.

       App. 1997).


[22]   The judgment of the juvenile court is affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1612-JT-2878 | May 3, 2017   Page 14 of 14
