MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                    FILED
regarded as precedent or cited before any                                      May 31 2019, 8:43 am

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


ATTORNEY FOR APPELLANT T.Y.                              ATTORNEYS FOR APPELLEE
Cynthia Phillips Smith                                   Curtis T. Hill, Jr.
Law Office of Cynthia P. Smith                           Attorney General
Lafayette, Indiana
                                                         Abigail R. Recker
ATTORNEY FOR APPELLANT T.B.Y.                            Deputy Attorney General
                                                         Indianapolis, Indiana
Harold E. Amstutz
Lafayette, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         May 31, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of Ta.Y. (Minor                             18A-JT-2963
Child)                                                   Appeal from the Tippecanoe
and                                                      Superior Court
                                                         The Honorable Faith A. Graham,
T.Y. (Mother) and T.B.Y.                                 Judge
(Father),
                                                         Trial Court Cause No.
Appellants-Respondents,                                  79D03-1807-JT-116

        v.

The Indiana Department of
Child Services,
Appellee-Petitioner


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019                        Page 1 of 15
      Crone, Judge.


                                             Case Summary
[1]   T.Y. (“Mother”) and T.B.Y. (“Father”) (collectively “Parents”) each appeal the

      trial court’s order involuntarily terminating their parental rights to their minor

      child, Ta.Y. (“Child”). We affirm.


                                 Facts and Procedural History
[2]   Child was born on June 21, 2017, to Parents. In July 2017, Child was removed

      from the home and placed in protective custody due to allegations of Mother’s

      drug use. Thereafter, the Indiana Department of Child Services (“DCS”) filed a

      child in need of services (“CHINS”) petition regarding Child. Following a

      hearing, the trial court determined that Mother was unable to care for Child due

      to her admitted methamphetamine use, and the court adjudicated Child a

      CHINS. A dispositional decree was entered in September 2017, ordering

      Mother to participate in services. At the time, Father’s whereabouts were

      unknown. However, Father appeared for a hearing in December 2017 and

      admitted that he was also unable to care for Child. Accordingly, the trial court

      entered a parental participation decree ordering Father to participate in

      essentially the same services as Mother.


[3]   Parents were eventually unsuccessfully discharged from all services for

      noncompliance. In July 2018, DCS filed a petition to involuntarily terminate

      both Mother’s and Father’s parental rights. Following a termination hearing



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 2 of 15
held on September 20, 2018, the trial court made the following relevant findings

of fact:1


           2. Mother and Father have a history of contacts with [DCS].
           Mother and Father have an older child [Ti.Y.] born on June 11,
           2011.[2] Neglect was substantiated against Mother and Father
           regarding [Ti.Y.] in August 2016 after both Mother and [Ti.Y.]
           tested positive for methamphetamine. At that time, Mother and
           Father were homeless and without employment. … DCS
           conducted an assessment in May 2017 related to parental
           substance use.


           3. DCS received a report on July 27, 2017, regarding an
           impaired caregiver at a pediatrician’s office after Mother was
           observed swaying back and forth while holding Child and
           admitted using methamphetamine prior to the appointment.


           4. At that time, DCS was able to contact Father by telephone
           who failed to arrive at the physician’s office as promised. During
           the investigation, Mother was observed swaying, moving all over
           the place, and making unusual mouth movements while
           attempting to feed Child despite cues of Child’s lack of interest in
           feeding. Mother admitted relapsing that morning by using
           methamphetamine and was actively impaired while caring for
           Child. A drug screen revealed the level of methamphetamine in
           Child was extremely high. Child tested positive on August 1,
           2017 …. On November 2, 2017, Child was still positive for
           methamphetamine ….




1
 For clarity, we substitute the aforementioned “Mother,” “Father,” “Parents,” and “Child” in the trial
court’s findings where appropriate.
2
    Ti.Y. is not involved in this termination proceeding.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019                    Page 3 of 15
        5. …. Child has remained out of [Parents’] care continuously
        since [September 27, 2017].


        ….


        7. Pursuant to dispositional orders and parental participation
        decrees issued in the second CHINS case, Mother was offered
        the following services: mental health assessment, individual
        therapy, substance abuse assessment and treatment, parenting
        assessment, home-based case management, random drug screens,
        and parenting time. Father was offered the same services.


        8. A permanency hearing was held on July 19, 2018 at which
        time the permanent plan was determined to be the initiation of
        proceedings for termination of parental rights and adoption.
        Neither parent had yet shown a real investment in reunification.
        DCS filed its petitions [to terminate parental rights] on July 19,
        2018. The evidentiary hearing on the Verified Petitions to
        Terminate Parental Rights was held on September 11, 2018. At
        the time of the termination hearing, the circumstances of Parents
        had not improved. Parents were in no better position to care for
        Child.


        9. Parents have a long-standing history of general instability.
        Parents were married at the time of Child’s birth. The current
        housing situation of both Parents is unknown…. Both Parents
        are currently unemployed.


        10. Mother was arrested on November 15, 2017 and released.
        Father was arrested on December 26, 2017 at Mother’s home
        and released. Father has a heart condition and was admitted to
        the hospital on December 28, 2017 and in January 2018 for
        approximately one (1) week. Father otherwise has anxiety
        attacks a couple of times a month that have not required
        hospitalization.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 4 of 15
        11. Mother completed a parenting assessment and a mental
        health assessment. It was recommended that Mother participate
        in therapy with an addictions specialist to address a history of
        substance abuse including a relapse prevention plan and focus on
        healthy relationships as well as case management. Mother was
        referred to individual therapy in September 2017 and in October
        2017 but failed to attend.


        12. Commencing in August 2017, Mother participated in case
        management services at least weekly if not two (2) or three (3)
        times per week. Mother’s goals also included alternate housing
        as well as addressing substance abuse issues with treatment.
        During that time, Mother was happy with her housing
        circumstances residing with Paternal Grandfather. Attempts
        were made to assist Mother in obtaining inpatient substance
        abuse treatment without success. Mother was also provided
        parenting education and was receptive to developmental
        information and incorporating Child’s therapeutic goals during
        parenting time. Mother ceased attending any services in March
        2018.


        13. Mother’s primary issue is ongoing methamphetamine use.
        Mother began testing positive for methamphetamine in October
        2017 but continuously denied use until March 2018. During the
        CHINS case, Mother tested positive for amphetamine/
        methamphetamine on [twelve occasions]. Mother failed to
        submit to all drug screens as requested.


        14. Mother began substance abuse treatment at Sycamore
        Springs at the end of July 2017. After relapsing, Mother’s
        engagement in services declined. Mother completed a substance
        abuse assessment in November 2017. Mother reengaged in IOP
        at Sycamore Springs in January 2018 but ceased attending in
        favor of IOP at [Wabash Valley Alliance] where she was
        unsuccessfully discharged after attending only one (1) session.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 5 of 15
        Mother did not participate in any other substance abuse
        treatment.


        15. Father’s primary issue is his mental and physical health as
        well as ongoing substance use. Father failed to maintain regular
        contact with DCS. Father failed to complete a substance abuse
        assessment, mental health assessment, or parenting assessment as
        ordered.


        16. Father participated in case management services in February
        2018. Father’s goals included obtaining employment and
        medication management as well as the relationship between the
        parents. Father failed to make any progress. Father was
        unsuccessfully discharged in March 2018.


        17. Father failed to submit to drug screens as requested. Father
        tested positive for amphetamine/methamphetamine on July 19,
        2018. Father admitted methamphetamine use as recently as a
        couple of weeks prior to the termination hearing.


        18. DCS made early attempts to schedule parenting time for
        Mother. DCS arrived at Mother’s home for a visit in early
        August 2017 but Mother was under the influence. Between
        August 2017 and March 2018, Mother was scheduled to attend
        supervised parenting time. At times, Mother arrived appearing
        under the influence with dilated pupils although Mother denied
        any substance use. Mother’s visits were suspended on December
        28, 2017 as a result of continued drug use. After resuming visits,
        Mother was unsuccessfully discharged again in March 2018.


        19. Father failed to attend any scheduled supervised parenting
        time sessions. Father’s last contact with Child was on July 27,
        2017.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 6 of 15
              20. Attempts to resume case management services for Parents in
              late April 2018 were unsuccessful. When a service provider
              arrived at the home, Paternal Grandfather led the provider to a
              dark basement using a flashlight as no light bulbs were working
              where Parents were asleep in the early afternoon. The basement
              was cluttered with trash and food debris. Paternal Grandfather
              directed the flashlight into the face of the parents to awaken them
              with no response. The service provider reported concerns of an
              overdose to DCS. Mother and Father failed to respond to further
              intake attempts and were discharged unsuccessfully in May 2018.


              21. CASA [court-appointed special advocate] noted that neither
              parent has made progress toward addressing substance abuse
              issues. Neither [Mother nor Father] has regularly maintained
              contact or participated in services. Child has remained in the
              same foster home since removal. Child is very bonded with the
              foster family. The foster parents have provided a stable and
              nurturing environment which is essentially the only home Child
              has ever really known. …. CASA also noted that another
              CHINS case had been initiated regarding [Ti.Y.] related to the
              home conditions where Parents resided with Paternal
              Grandfather and continued substance use by Parents.


              Appealed Order at 2-6.


[4]   Based on these findings, the trial court concluded that: (1) there is a reasonable

      probability that the conditions that resulted in Child’s removal and continued

      placement outside the home will not be remedied by Mother or Father; (2) there

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

      between both Parents and Child poses a threat to Child’s well-being; (3)

      termination of the parent-child relationship between both Parents and Child is

      in Child’s best interests; and (4) DCS has a satisfactory plan for Child’s care and

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 7 of 15
      treatment, which is adoption. Accordingly, the trial court determined that DCS

      had proven the allegations of the petition to terminate by clear and convincing

      evidence and therefore terminated both Mother’s and Father’s parental rights.

      Each parent separately appeals.


                                     Discussion and Decision
[5]   “The purpose of terminating parental rights is not to punish the parents but,

      instead, to protect their children. Thus, although parental rights are of a

      constitutional dimension, the law provides for the termination of these rights

      when the parents are unable or unwilling to meet their parental

      responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

      omitted). “[T]ermination is intended as a last resort, available only when all

      other reasonable efforts have failed.” Id. A petition for the involuntary

      termination of parental rights must allege in pertinent part:


          (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
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 8 of 15
          (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 that termination is appropriate by

      a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144

      (Ind. 2016). If the trial 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).


[6]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
              of fact and conclusions thereon, we apply a two-tiered standard
              of review: we first determine whether the evidence supports the
              findings and then determine whether the findings support the
              judgment. In deference to the trial court’s unique position to
              assess the evidence, we will set aside a judgment terminating a
              parent-child relationship only if it is clearly erroneous.


      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

      do not support the trial court’s conclusions or the conclusions do not support

      the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 9 of 15
          Section 1 – Clear and convincing evidence supports the trial
           court’s conclusion that there is a reasonable probability of
                             unchanged conditions.
[7]   Both Parents challenge the trial court’s conclusion that there is a reasonable

      probability that the conditions that resulted in Child’s removal from and

      continued placement outside the home will not be remedied.3 In determining

      whether there is a reasonable probability that the conditions that led to Child’s

      removal and continued placement outside the home will not be remedied, we

      engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

      1225, 1231 (Ind. 2013). First, “we must ascertain what conditions led to [her]

      placement and retention in foster care.” Id. Second, “we ‘determine whether

      there is a reasonable probability that those conditions will not be remedied.’”

      Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010) (citing In re A.A.C.,

      682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second step, the trial court

      must judge a parent’s fitness at the time of the termination proceeding, taking

      into consideration evidence of changed conditions, and balancing a parent’s

      recent improvements against “‘habitual pattern[s] of conduct to determine

      whether there is a substantial probability of future neglect or deprivation.’” In

      re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231).



      3
       Both Parents also challenge the trial court’s conclusion that there is a reasonable probability that the
      continuation of the parent-child relationship poses a threat to Child’s well-being. However, Indiana Code
      Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination of
      parental rights, the trial court need only find that one of the three requirements of that subsection has been
      established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
      Ct. App. 2013), trans. denied. Accordingly, we will address only one of the three requirements.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019                      Page 10 of 15
      “A pattern of unwillingness to deal with parenting problems and to cooperate

      with those providing social services, in conjunction with unchanged conditions,

      support a finding that there exists no reasonable probability that the conditions

      will change.” Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 372

      (Ind. Ct. App. 2007), trans. denied. 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 parent’s behavior will not change.” In re Kay

      L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).


[8]   The record indicates that Child was initially removed from the home due to

      Mother’s drug use and Child testing positive for extremely high levels of

      methamphetamine. Mother’s main goal in court-ordered services was to

      address her substance abuse, but she made little to no progress on that goal. Tr.

      Vol. 2 at 17. Mother was referred to substance abuse treatment yet was

      discharged after attending only one therapy session. Mother continued to test

      positive for amphetamines and or methamphetamines twelve times during the

      CHINS case. Despite continually testing positive for methamphetamine,

      Mother denied any drug use. Service providers observed that Mother was often

      under the influence of drugs during her supervised visits with Child. Visits

      with Child were repeatedly suspended due to Mother’s continued drug use, and

      then resumed in hopes of change. However, Mother refused to stop abusing

      methamphetamines and was unsuccessfully discharged from supervised

      visitation in March 2018.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 11 of 15
[9]    Regarding Father, shortly after Child’s removal from the home, DCS located

       Father, and he admitted that he was also unable to care for Child. It was

       determined that he struggled with both mental and physical health issues, as

       well as ongoing substance abuse. DCS attempted to address those issues

       through various service referrals, but Father failed to maintain contact with

       DCS. Father failed to complete a substance abuse assessment, a mental health

       assessment, or a parenting assessment as ordered by the trial court. Father

       submitted to only two drug screens during the CHINS case, one of which was

       positive. Father was eventually discharged from home-based case management

       due to noncompliance, and he failed to attend any supervised visitation with

       Child, his last contact with Child being in July 2017.


[10]   The record indicates that DCS tried to resume at least some case management

       services with both Parents in late April 2018. Parents were found living in

       deplorable conditions in Paternal Grandfather’s basement. Attempts to even

       awaken Parents that day were unsuccessful, with the service provider reporting

       concerns of a possible drug overdose. Parents failed to respond to any further

       communications with DCS, and both were unsuccessfully discharged from all

       services in May 2018.


[11]   Both Parents have failed to cooperate with those providing social services and

       have demonstrated an unwillingness to address the plethora of issues that led to

       Child’s initial removal and continued placement outside their care. Although

       Father blames Child’s initial removal on Mother, he ignores that he too failed



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 12 of 15
       to participate in court-ordered services or to address his parenting problems,

       including his claimed mental health issues and his substance abuse.


[12]   In addition, both Parents have a longstanding history of “general instability”

       and, at the time of the termination hearing, both were without stable housing

       and unemployed. Appealed Order at 3. In sum, Parents’ demonstrated pattern

       of unwillingness to deal with their parenting problems and to cooperate with

       those providing social services, coupled with unchanged conditions, clearly and

       convincingly supports the trial court’s conclusion that there exists no reasonable

       probability that the conditions that led to Child’s removal and continued

       placement outside the home will change.


         Section 2 – Clear and convincing evidence supports the trial
          court’s conclusion that termination of both Mother’s and
              Father’s parental rights is in Child’s best interests.
[13]   Both Parents also challenge the trial court’s conclusion that termination of their

       respective parental rights is in Child’s best interests. In considering whether

       termination of parental rights is in the best interests of a child, the trial court is

       required to look beyond the factors identified by DCS and look to the totality of

       the evidence. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185,

       203 (Ind. Ct. App. 2003). In doing so, the trial court must subordinate the

       interests of the parent to those of the child involved. Id. The trial court need not

       wait until the child is irreversibly harmed before terminating parental rights. Id.

       “[T]he historic inability to provide adequate housing, stability, and supervision,

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

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 13 of 15
       that continuation of the parent-child relationship is contrary to the child’s best

       interests.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). The testimony

       of service providers may support a finding that termination is in the child’s best

       interests. McBride, 798 N.E.2d at 203.


[14]   DCS Family Case Manager Ashley Rayburn testified that while Mother

       initially participated in some services, her participation was minimal and she

       made little progress. Rayburn stated that Father participated in no services.

       Rayburn testified that both Parents were unsuccessfully discharged from all

       services in May 2018 for noncompliance. Rayburn emphasized that Parents

       appeared unwilling to complete substance abuse treatment and had still not

       demonstrated that they could maintain a stable home or employment.

       Accordingly, Rayburn opined that it was in Child’s best interests to be adopted

       into her current foster home.


[15]   Similarly, CASA Hunter Merriman testified that neither Mother nor Father had

       made any progress in addressing their substance abuse issues. Merriman noted

       that another CHINS case had already been initiated against Parents’ regarding

       their other minor child, Ti.Y., due to deplorable home conditions where

       Parents were living and their continued substance abuse. Merriman noted that

       Child had resided in the same foster home since her removal, and that Child

       was very bonded with the foster family. Merriman opined that termination of

       both Parents’ rights, which would allow for adoption, was in Child’s best

       interests.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 14 of 15
[16]   The trial court here need not wait until Child is irreversibly harmed before

       terminating parental rights. See id. at 203. Clear and convincing evidence

       supports the trial court’s conclusion that termination of both Mother’s and

       Father’s parental rights is in Child’s best interests. The trial court’s involuntary

       termination order is affirmed.


[17]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2963 | May 31, 2019   Page 15 of 15
