MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                    Sep 30 2016, 8:13 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew J. Sickmann                                       Gregory F. Zoeller
Boston Bever Klinge Cross & Chidester                    Attorney General of Indiana
Richmond, Indiana                                        Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             September 30, 2016
Parent-Child Relationship of:                            Court of Appeals Case No.
A.H. & P.H. (Minor Children)                             89A01-1601-JT-53
and T.S. (Mother) and D.H.                               Appeal from the Wayne Superior
(Father)                                                 Court
Appellants-Respondents,                                  The Honorable Darrin M.
                                                         Dolehanty, Judge.
        v.                                               Trial Court Cause Nos.
                                                         89D03-1509-JT-29
The Indiana Department of                                89D03-1509-JT-30
Child Services,
Appellee-Petitioner



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016     Page 1 of 16
[1]   T.S. (“Mother”) and D.H. (“Father”) appeal the involuntary termination of

      their parental rights to minor daughter A.H. and minor son P.H (collectively

      “the Children”). Mother and Father raise one issue, which we restate as

      whether the State presented sufficient evidence to support the trial court’s

      termination order.


[2]   We affirm.

                                          Facts and Procedural History


[3]   The Children were born on June 30, 20141 to Mother and Father. On August

      15, 2014, the Children were removed from Mother’s and Father’s care by an

      emergency custody order after it was discovered that P.H.’s meconium tested

      positive for morphine and the Children were both experiencing symptoms of

      withdrawal. The Department of Child Services (“DCS”) filed petitions alleging

      that the Children were Children in Need of Services (“CHINS”) on August 19,

      2014. At this time, the Children were placed in the care of their paternal

      grandmother.


[4]   On the same day, the trial court held an initial hearing and adjudicated the

      Children as CHINS based on Mother’s and Father’s admissions. In its

      September 16, 2014 dispositional order, the court ordered Mother and Father to

      participate in reunification services, which included: notifying the DCS case




      1
          Children are fraternal twins.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 2 of 16
      manager of any arrest or criminal charges, keeping all appointments with DCS,

      Court Appointed Special Advocate (CASA)/Guardian ad litem (GAL), and

      service providers, not using or consuming illegal controlled substances,

      submitting to random drug screens with results being positive if failure to timely

      submit, completing a substance abuse assessment and following all

      recommendations, and attending all visitation with the Children.

[5]   On October 9, 2014, DCS filed a petition for contempt due to lack of parental

      participation. The trial court held a hearing on the petition on October 27,

      2014, and Mother and Father admitted that they had tested positive for drugs

      and failed to comply with the court’s dispositional order. The court sentenced

      Mother and Father to each serve fourteen days in jail.


[6]   The court held a review hearing on February 20, 2015, and found that Mother

      and Father continued to use drugs, failed to participate in services, and failed to

      notify DCS of their location for weeks at a time. Further, Father was arrested

      and incarcerated on armed robbery charges on April 29, 2015. On May 15,

      2015, Mother overdosed on drugs while she was at paternal grandmother’s

      home—a place she was not supposed to be. As a result, DCS removed the

      Children from paternal grandmother’s care and placed them in a foster home.


[7]   On August 12, 2015, the trial court held a review and permanency hearing

      where it changed the plan to termination and adoption. The court made this

      determination after discovering that Father was still incarcerated and that

      Mother was not routinely participating in visitation with Children and was not


      Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 3 of 16
      complying with substance abuse counseling services. DCS filed its termination

      petitions on September 8, 2015. The trial court held an evidentiary hearing on

      DCS’s termination petitions on December 8, 2015.


[8]   Meridian Services clinical addiction counselor, Jessica Cate (“Cate”) worked

      with Mother for a brief period of time. Cate stated that Mother never completed

      the twelve-week intensive outpatient treatment program, but when she did

      attend, she was receptive to feedback and participated in group discussions.

      Mother attempted to complete the program three times but was discharged each

      time based on her lack of attendance. Meridian Services clinical addiction

      counselor, Tom Pennington (“Pennington”), worked with Father twice at the

      intensive outpatient treatment program, but because of his failure to attend,

      Father was also discharged from the program. Pennington noted that Father

      had limited engagement when he did attend and that he had a significant need

      for substance abuse services.


[9]   Family case manager, Emily Graham (“Graham”), knew Mother from a

      previous CHINS case dating back to May 2014 and became acquainted with

      Father in August 2014 after the Children were removed. Graham stated that

      Mother had voluntarily terminated her parental rights to another child involved

      in a prior CHINS case in June 2014.2 Graham also noted Mother and Father’s




      2
       Apparently, a total of two prior CHINS cases involved two of Mother’s other children. In the first CHINS
      case, the child was removed from Father’s care, but DCS would not place the child with Mother due to her
      substance abuse issues. The second CHINS case involved Mother overdosing in February 2014 in front of
      child. That child’s grandmother is now his guardian.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016        Page 4 of 16
       lack of participation in services. Father completed only the substance abuse

       assessment, while Mother was referred for substance abuse treatment as early as

       January 2013, but she began participatation in rehab services just before the

       termination hearing. Graham stated that Mother’s original service provider

       cancelled all future visitation because Mother continuously missed visits with

       Children. Graham then held the visitation at the DCS office between June and

       September 2015, but Mother missed more visits than she attended.


[10]   Graham stated that termination of parental rights is in the Children’s best

       interests. She expressed that the Children were removed due to noncompliance

       with substance abuse and the situation has not been remedied. Mother only

       recently went to rehab, and Father maintains sobriety due to his incarceration.

       Graham noted that Mother has not shown consistently maintained sobriety,

       and before Father was incarcerated, he failed eight out of nine drug screens

       between August 2014 and February 2015. She stated that the Children are well

       bonded to their foster parents and call them “mama” and “dada.” Tr. p. 53.

[11]   Deborah Walcott (“Walcott”) provided supervised visitation to Mother through

       the Extra Special Parents program. Walcott stated that she began providing

       Mother with visitation services twice per week in September 2015. Walcott

       reported that Mother interacted with the Children at the visits and never was

       under the influence of alcohol or drugs. Children’s Bureau case worker, Tom

       Brazell (“Brazell”) stated that he had been working with Father since August

       2015 through the Engaging Father’s Program, which focuses on improvement

       in fatherhood. Brazell testified that Father is always friendly, kind, considerate,

       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 5 of 16
       and ready to engage. Brazell also stated that Father has anger issues that he is

       working to remedy and has made progress during the time Brazell has worked

       with him.


[12]   Mother reported that she recently completed inpatient rehab at Harbor Lights,

       which consisted of two weeks’ inpatient treatment and one week of detox. She

       admitted that she had not successfully completed the substance abuse program

       at Meridian Services but recently enrolled again. Mother also noted that she

       plans to attend “90 meetings in 90 days” to maintain her sobriety. Tr. p. 89.

       Mother reported having a job lined up at Kroger and that she was waiting on an

       apartment at Carriage House but presented no verification of either

       employment or housing to the court. She also explained that the reason she

       terminated her parental rights to the child involved in one of the prior CHINS

       cases was because he had mental and behavioral issues that she could not

       handle, especially with her own substance abuse issues.3


[13]   CASA Director Karen Bowen (“Bowen”) also testified that termination of

       parental rights is in the best interests of the Children. Bowen noted that the

       Children were removed shortly after birth and were eighteen months old at the

       time of the termination hearing. Bowen emphasized the importance of the




       3
         Mother has five children: (1) the oldest child lives with his father; (2) another child lives with paternal
       grandmother who has guardianship; (3) Mother voluntarily terminated parental rights to a child with mental
       and behavioral issues; and (4) the twins that are the subject of the trial court’s termination order. It is not
       clear whether any of these children have the same father. However, from the record it appears that Father is
       only the biological father of the Children.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016            Page 6 of 16
       Children developing trust and having stability from their caregivers, which she

       believed Mother and Father could not provide. Bowen stated that Mother has a

       history of substance abuse and housing insecurity. Bowen expressed that three

       weeks of sobriety was not enough to indicate whether Mother intends to make a

       permanent lifestyle change. She further noted that Father remains incarcerated

       and only started participating in services after his incarceration. Like Graham

       expressed, Bowen stated that the Children are well bonded to their foster

       parents and the foster parents are able to meet their needs.


[14]   On December 11, 2015, the trial court entered an order terminating Mother and

       Father’s parental rights to the Children. Mother and Father now appeal.

                                          Discussion and Decision


[15]   We have long had 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 and reasonable inferences favorable to the trial

       court’s judgment. Id. 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. Id. 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. Clear error is that

       which “leaves us with a definite and firm conviction that a mistake has been


       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 7 of 16
       made.” J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.

       Ct. App. 2004), trans. denied.


[16]   “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

       to the child’s interests in determining the proper disposition of a petition to

       terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).


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

       rights must meet the following 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.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 8 of 16
[18]   However, Indiana Code section 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) has been established by clear and convincing evidence. In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). 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 parent 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 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 the allegations in a petition are

       true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-

       2-8(a).


[19]   Mother and Father argue that DCS failed to present sufficient evidence that

       they were unable to remedy the conditions and situation that led to Children’s

       removal and that termination of their parental rights was in the Children’s best

       interests. Specifically, Mother and Father claim that several of the trial court’s

       findings do not support the two conclusions. The challenged findings are as

       follows:


                 22. Tom Brazell is a case worker with the Children’s Bureau. He
                 has worked with father, through an August 2015 referral from
                 DCS. Mr. Brazell visits with father once each week, while father
                 remains incarcerated. Mr. Brazell has been using an individual
                 enrichment program referred to as “Being the Best Father You
                 Can Be.” The program focuses on the importance of fathers in a
       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 9 of 16
        child’s life, and how to parent as a father. The program is
        administered through workbooks and discussion. Mr. Brazell has
        observed father to be appropriate, kind, considerate, and
        receptive.


        29. The DCS has not requested that father submit to drug screens
        since he has been incarcerated.


        30. Father’s incarceration has also kept FCM Graham from
        being able to determine if father is able to apply skills he may
        have acquired as a result of the services being provided.


        33. FCM Graham made arrangements for mother to participate
        in an inpatient substance abuse program, as early as January,
        2015.[4] Mother did not participate in any inpatient program as a
        result of those referrals. Mother reports that she very recently
        attended an inpatient program through the Salvation Army,
        known as “Harbor Lights.” Mother reported that the program
        consisted of one (1) week of “detox” and then two (2) weeks of
        inpatient therapy. Mother was very vague about the dates when
        she participated in this program, and no evidence was presented
        to verify mother’s claim that she completed the program or
        completed it successfully.


        39. Mother reports that she has been “sober” for forty-one (41)
        days.


Appellant’s Br. at 24-26.




4
 Graham’s testimony in the transcript indicates that Mother was offered substance abuse services as early as
January 2013. See Tr. p. 49.

Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016        Page 10 of 16
[20]   Based on these findings, among others, the trial court concluded that: (1) DCS

       has shown by clear and convincing evidence, that it is a reasonable probability

       that the conditions that resulted in the children’s removal from and placement

       outside of the home of the parents will not be remedied; and (2) clear and

       convincing evidence was presented to show that termination of parental rights

       is in the best interest of these children. Appellant’s Br. at 26-27.

       A. Conditions that Led to Removal


[21]   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. v. Ind. Dep’t of Child

       Servs., 987 N.E.2d 1150, 1156-57 (Ind. Ct. App. 2013). However, the court can

       “disregard the efforts. . . made only shortly before termination and to weigh

       more heavily [a parent’s] history of conduct prior to those efforts.” In re K.T.K.,

       989 N.E.2d 1225, 1234 (Ind. 2013).


[22]   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. ADS, 987 N.E.2d at 1157. The trial court may consider evidence of a

       parent’s prior history of neglect, failure to provide support, and lack of adequate

       housing and employment. Id. The trial court may consider the services offered

       to the parent by DCS and the parent’s response to those services as evidence of


       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 11 of 16
       whether conditions will be remedied. Id. 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.


       1. Mother


[23]   Mother specifically challenges finding numbers thirty-three and thirty-nine,

       which relate to her recent participation in rehab and forty-one days of sobriety

       at the time of the termination hearing. Mother contends that shortly before the

       termination hearing, she remedied this condition by completion of an inpatient

       rehab program, took steps to secure stable housing, and expected to start job

       orientation the day after the hearing.

[24]   In this situation, the Children were removed from Mother and Father’s home

       after the Children were experiencing withdrawal symptoms and P.H.’s

       meconium tested positive for morphine. Mother had a prior history of

       substance abuse issues, and DCS was familiar with Mother from prior CHINS

       cases. In the 2012 and 2014 CHINS cases, Mother was offered substance abuse

       services and treatment but acknowledged that she never successfully completed

       any of these programs. It was not until DCS filed its termination petitions to the

       Children that Mother enrolled in substance abuse treatment. The trial court can

       “disregard the efforts. . . made only shortly before termination and to weigh

       more heavily [a parent’s] history of conduct prior to those efforts.” In re K.T.K.,

       989 N.E.2d at 1234. The trial court acknowledged Mother’s self-reported


       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 12 of 16
       progress, and it weighed it accordingly. Mother’s argument is simply a request

       that we reweigh witness credibility and the evidence, which is not within our

       role as an appellate court. See In re D.B., 942 N.E.2d at 871.


       2. Father


[25]   Father challenges finding numbers twenty-two, twenty-nine, and thirty, which

       relate to Father’s participation in services while incarcerated, his sobriety while

       incarcerated, and demonstration of skills learned from the provided services.

       Father specifically argues that he has remedied the conditions that led to

       removal of the Children because he has participated in services in jail, has

       maintained his sobriety, and has not been given an opportunity to demonstrate

       the parenting skills that he has learned.


[26]   Although Father participated in a DCS-referred service while he was

       incarcerated, he failed to consistently participate in substance abuses services

       and visitation with the Children prior to incarceration. Further, before Father

       was incarcerated, he failed eight out of nine drug screens. The court’s finding

       regarding DCS not drug testing Father while in prison assumes that Father’s

       sobriety is a result of incarceration, not that he has overcome his substance

       abuse issues. It is within the trial court’s discretion to give more weight to a

       parent’s habitual patterns of conduct in order to determine the probability of

       future neglect or deprivation of the child. See ADS, 987 N.E.2d at 1157. The

       trial court’s finding that case manager Graham stated she was unable to

       determine if Father could apply the learned parenting skills did not unfairly


       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 13 of 16
       penalize Father. Individuals who pursue criminal activity run the risk of being

       denied the opportunity to develop positive and meaningful relationships with

       their children. Castro v. State OFC, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006).

       Just like he could not participate in visitation with Children due to his

       incarceration, case manager Graham could not assess whether Father had made

       progress in parenting due to Father’s incarceration.

       B. Best Interests of the Child


[27]   When determining what is in the best interests of a child, the trial court must

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

       evidence. A.D.S., 987 N.E.2d at 1158. In doing so, the court must subordinate

       the interests of the parent to those of the child. Id. The court need not wait until

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

       Id. A recommendation by 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 concern in determining the best interests of a child. Id. at 1159.


[28]   Mother and Father argue that they have made progress with their substance

       abuse issues and challenge the court’s conclusion that termination of their

       parental rights is in the Children’s best interests.


[29]   The Children were six weeks old when they were removed from Mother’s and

       Father’s care. Father basically has had no interaction with the Children since



       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 14 of 16
       they were removed, and while Mother attended visitation during the CHINS

       proceedings, she often missed visits, which led to cancellation of these services.

[30]   Both case manager Graham and CASA Bowen expressed that termination of

       parental rights was in the Children’s best interests. Case manager Graham

       emphasized that Mother has had many years to seek treatment for her

       substance abuse issues but had failed to do so until immediately before the

       termination hearing. Graham further noted that Father was also ordered to

       participate in substance abuse services and visitation with the Children prior to

       incarceration but failed to do so. CASA Bowen stated that the Children are well

       bonded to their foster parents and the Children are at a critical age to establish

       permanency and stability. Based on the recommendations from Graham and

       Bowen, we cannot conclude that the trial court erred in determining that

       termination of Mother and Father’s parental rights to the Children was in the

       best interests of the Children.

                                                   Conclusion


[31]   Although Mother and Father have recently attempted to make positive changes

       in their lives, it is simply too late in the lives of these children. Mother only

       recently completed a rehab program after several years of failed attempts.

       Although she reported maintaining sobriety for forty-one days and having

       housing and a job lined up after the termination hearing, we defer to the trial

       court’s discretion on the weight given to that evidence. Father remains

       incarcerated and arguably sober, but this is largely due to the nature of his


       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 15 of 16
       incarceration. He has engaged in services while in jail but failed to comply with

       the Children’s case plan prior to incarceration. Applying our highly deferential

       standard of review in this situation, we cannot conclude that the trial court’s

       decision to terminate Mother and Father’s parental rights to Children was

       clearly erroneous.


[32]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016   Page 16 of 16
