MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 30 2018, 9:32 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
Julianne L. Fox                                          Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana
                                                         Marjorie Lawyer-Smith
                                                         Robert J. Henke
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             November 30, 2018
Parent-Child Relationship of R.J.                        Court of Appeals Case No.
(Minor Child) and                                        18A-JT-1412
J.J. (Mother),                                           Appeal from the Vanderburgh
                                                         Superior Court
Appellant-Respondent,
                                                         The Honorable Brett J. Niemeier,
        v.                                               Judge
                                                         Trial Court Cause No.
Indiana Department of Child                              82D04-1711-JT-2072
Services,
Appellee-Petitioner.



Mathias, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018                  Page 1 of 15
[1]   J.J. (“Mother”) appeals the Vanderburgh Superior Court’s termination of her

      parental rights. She argues that the Department of Child Services (“DCS”)

      failed to present sufficient evidence to support the trial court’s conclusions of

      law.


[2]   We affirm.


                                 Facts and Procedural History
[3]   When she arrived at the hospital to deliver the child (“R.J.”) on June 30, 2016,

      Mother tested positive for marijuana. The baby’s umbilical cord tested positive

      for both THC and cocaine. Mother received no prenatal care in the first six

      months of her pregnancy. DCS became involved shortly after birth, and, based

      on its preliminary investigation, removed R.J. On July 11, 2016, DCS filed a

      Child in Need of Services (“CHINS”) petition, to which Mother admitted. A

      hair follicle test taken shortly thereafter showed that Mother had used cocaine

      in each of the past three months.


[4]   The CHINS court ordered Mother to participate in parent aide sessions,

      complete a substance abuse evaluation and follow all treatment

      recommendations, participate in parenting classes, attend supervised visitation,

      and remain drug and alcohol free. However, throughout the course of the

      CHINS proceedings, Mother struggled to comply with the court’s orders. She

      also accumulated several arrests and convictions.


[5]   In 2017 and 2018, Mother was arrested, charged, or convicted of the following:



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 2 of 15
        A. Mother was arrested for operating a vehicle while intoxicated and

            intimidation on May 3, 2017. On August 8, 2017, Mother pleaded

            guilty to operating a vehicle while intoxicated, and her intimidation

            charge was dismissed. As a result of her guilty plea, Mother was

            placed on probation until August 4, 2018;


        B. Mother failed to appear in this matter on June 5, 2017, and the trial

            court issued a warrant. This warrant was served on Mother when she

            was in the Daviess County jail on a separate warrant from that

            county. The Daviess County matter involved two misdemeanors that

            were later deferred through a diversion program;

        C. On November 4, 2017, Mother was arrested for resisting law

            enforcement, operating a vehicle while intoxicated, leaving the scene,

            and an enhanced operating a vehicle while intoxicated due to a prior

            conviction. She was still on probation at the time of this arrest. As of

            March 13, 2018, these charges were still pending;

        D. On March 15, 2018, Mother was arrested for criminal recklessness-

            shooting into a dwelling, criminal recklessness with a deadly weapon,

            battery by bodily waste, intimidation, and carrying a handgun

            without a permit.

        E. DCS records also showed a level 6 felony charge in Jackson County.

            The trial court was unsure of details regarding this charge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 3 of 15
[6]   Mother was irregular in her participation in substance abuse therapy. Mother

      missed so many appointments that she was placed on a schedule where she had

      to call the day-of to see if any appointments were available. She never

      completed her sessions. Mother also tested positive for THC on several drug

      screens. She failed to show up for approximately forty-five drug screens.


[7]   Mother was also inconsistent with visitation throughout the duration of the

      CHINS proceedings. She did not visit R.J. at all between September 2016 and

      February 2017. Mother missed approximately half of the visits scheduled

      between February and April of 2017. Mother attended two visits in May of

      2017, and then visits were suspended while Mother was incarcerated in Daviess

      County. After her release, Mother attended visitations, but they were placed on

      hold due to Mother’s threats of violence toward the visitation supervisors. Once

      visits resumed, Mother attended visitation regularly for a period of time. She

      missed some visits prior to her last arrest in March of 2018, as well as the visit

      that was scheduled for the day after she was arrested. She was unable to visit

      while incarcerated. She was still incarcerated at the time of the termination

      hearing.

[8]   When Mother did attend visits, she was often inappropriate and occasionally

      threatening to the workers who supervised visitation. She resisted learning the

      skills the workers attempted to teach her. On more than one occasion, Mother

      indicated she might run away from visitation with the baby. One of the service

      providers insisted that if Mother continued to threaten its workers, it would

      discontinue services due to concerns for worker safety.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 4 of 15
[9]    The DCS family case manager (“FCM”) expressed concern that Mother did not

       take R.J.’s medical condition seriously during the visitations. R.J. was

       diagnosed with laryngomalacia, which means that her larynx did not develop

       correctly. As a result, doctors recommended that R.J. not be around cigarette

       smoke nor be exposed to people with residue from cigarette smoke on their

       clothing. In spite of being told about this condition, Mother would come to

       visitation smelling of smoke, and would even change R.J. into clothing that

       smelled of smoke that Mother had brought with her to the visitation. The FCM

       reminded Mother of the condition and R.J.’s sensitivity to residue from

       cigarette smoke; however, Mother did not make the necessary changes. On at

       least one occasion, R.J.’s condition flared up after a visit, resulting in the foster

       parents having to take R.J. to the emergency room for immediate medical

       attention.

[10]   The trial court ordered Mother to take nurturing classes. The trial court also

       granted Mother’s request not to have parent aid or outpatient mental health

       therapy. While DCS placed the referral for the ordered nurturing course,

       Mother did not believe she needed any parenting skills and never completed

       any nurturing classes.


[11]   Mother also had difficulty maintaining a steady income and stable housing. At

       the time the CHINS proceedings were initiated, Mother lived with the child’s




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 5 of 15
       father.1 Father moved to Indianapolis shortly after the CHINS proceedings

       were initiated. Mother requested that the case be transferred to Marion County;

       however, jurisdiction was unable to be transferred. When Father moved to

       Indianapolis, Mother became homeless. A parent aide provided by DCS

       assisted Mother with obtaining a place in a shelter. Mother threatened this

       parent aide. She was asked to leave the shelter due to fighting. Mother then

       moved to Indianapolis in spite of knowing that the CHINS matter was unable

       to be transferred.


[12]   After a short period of time in Indianapolis, Mother moved in with R.J.’s

       maternal grandmother (“Grandmother”) and Grandmother’s wife in Vigo

       County. Grandmother has a significant criminal history and was arrested as

       recently as November 2017 for strangulation and domestic battery.

       Grandmother’s criminal history disqualified the home from being approved for

       placement.


[13]   At the time of the termination hearing, Mother was incarcerated. Mother

       testified that she had worked as a dancer in a club when she first moved to Vigo

       County and had some savings to pay for housing and home detention costs

       upon release. Mother indicated that she worked for a period of time in customer

       service for a phone company, a position a parent aide helped her obtain.




       1
         Aside from attending a few visitations early in the proceedings, Father has not participated in the CHINS
       proceedings or services. At the time of Mother’s termination hearing, a warrant had been issued for his arrest,
       and his whereabouts were unknown. A publication hearing had been set for August 23, 2018 regarding
       termination of Father’s parental rights.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018                 Page 6 of 15
       However, Mother never provided income verification to the FCM. Mother also

       did not have a valid driver’s license.

[14]   The FCM believed a continuation of the parent-child relationship posed a threat

       to the child’s well-being. She stated that R.J. and Mother did not have a bond

       and that R.J. would become upset when it would be time to go to visitation.

       R.J. would have nightmares after visitation. The FCM also believed R.J. to be

       bonded to her pre-adoptive foster parents.


[15]   The Court Appointed Special Advocate (CASA) agreed with the FCM. She

       believed it is in the best interest of the child for parental rights to be terminated

       and for the child to be adopted. Mother was often hostile toward the CASA,

       even spitting at her on one occasion. The CASA reported that the child did not

       tolerate visits with Mother well. The child recognized the backpack that the

       foster mother sent on visits and cried when she saw it and said “no.”

[16]   On May 18, 2018, the trial court held a hearing regarding the termination of

       Mother’s parental rights. On May 23, 2018, the court entered an order

       terminating Mother’s parental rights to R.J. The trial court stated, in relevant

       part:

               4. The child has been removed from the parent and has been
               under the supervision of the department for at least 6 months
               under a dispositional decree in cause number 82D04-1607-JC[-
               ]1226, specifically the child was removed at the onset of the
               CHINS case and never returned to the mother. The child has also
               been out of the mother’s care for at least 15 months out of the last
               22 months as a result of the child’s CHINS case.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 7 of 15
                       a. There is a reasonable probability that the conditions that
                       resulted in the child’s removal or continued placement
                       outside the home of the parent will not be remedied as
                       mother has shown little signs of consistency and
                       improvement on any of the issues that she faces. The
                       mother has repeatedly been arrested no matter what is at
                       stake. It doesn’t seem to matter whether there are Court
                       orders, upcoming criminal hearings, child placement
                       hearings, her parental rights being at stake, or [even her]
                       freedom: she continues to defy numerous Court orders and
                       gets arrested. This Court believes the mother showed her
                       true self when early on in the CHINS case she left town
                       and chose not to visit her newborn for several months.


                       b. There is a reasonable probability that the continuation
                       of the parent-child relationship between the mother and
                       the child poses a threat to the child’s well-being as no child
                       cannot be [a]ffected by a parent who has the instability and
                       problems that the mother faces.


                       c. Termination of the parent-child relationship between the
                       mother and the child is in the best interests of the child as
                       the child needs the stability and loving environment that
                       the child current [sic] has.


       Appellant’s App. pp 4–5. Mother appeals, arguing that DCS failed to present

       sufficient evidence to support the trial court’s conclusions.


                                      Discussion and Decision
[17]   We have often noted that the purpose of terminating parental rights is not to

       punish parents but instead to protect their children. In re S.P.H., 806 N.E.2d

       874, 880 (Ind. Ct. App. 2004). Although parental rights are constitutionally


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 8 of 15
       protected, the law allows for the termination of such rights when parents are

       unable or unwilling to meet their responsibility as parents. Id. Indeed, a parent’s

       interest 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). The court need not wait until a child is harmed

       irreversibly before terminating the parent-child relationship. In re J.S., 906

       N.E.2d 226, 236 (Ind. Ct. App. 2009).	

[18]   The termination of parental rights is controlled by Indiana Code section 31-35-

       2-4(b)(2), which provides that a petition to terminate parental rights must allege:

               (A) that one (1) of the following is true:

                       (i) The child has been removed from the parent 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.

                       (iii) The child has been removed from the parent and has
                       been under the supervision of a local office or probation
                       department for at least fifteen (15) months of the most
                       recent twenty-two (22) months, beginning with the date
                       the child is removed from the home as a result of the child
                       being alleged to be a child in need of services or a
                       delinquent child;

               (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
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 9 of 15
                       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.

[19]   The burden is on DCS to prove each element by clear and convincing evidence.

       I.C. § 31-37-14-2; G.Y., 904 N.E.2d at 1260–61. However, as Indiana Code

       section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is required

       to find that only one prong of that subsection has been established by clear and

       convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). If

       the court finds the allegations in a petition are true, the court shall terminate the

       parent-child relationship. I.C. § 31-35-2-8(a). If the court does not find that the

       allegations in the petition are true, it shall dismiss the petition. Id. at § 8(b).


[20]   A pattern of unwillingness to deal with parenting problems and to cooperate

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

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

       conditions will change. In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005).

       An inability to provide adequate housing, stability, and supervision, combined

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

       continuation of the parent-child relationship is contrary to the child’s best
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 10 of 15
       interests. Id. Indeed, a factfinding court, “recognizing the permanent effect of

       termination . . . must also evaluate the parent’s habitual patterns of conduct to

       determine whether there is a substantial probability of future neglect or

       deprivation of the children.” In re D.G., 702 N.E.2d 777, 779 (Ind. Ct. App.

       1998).


[21]   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 evidence nor judge witness credibility. In re E.M., 4

       N.E.3d 636, 642 (Ind. 2014). Rather, we consider only the evidence and

       inferences most favorable to the judgment. Id. When we review a trial court’s

       findings of fact and conclusions of law in a case involving the termination of

       parental rights, we first determine whether the evidence supports the findings;

       secondly, we determine whether the findings support the judgment. A.D.S. v.

       Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans.

       denied.


[22]   “[I]t is not enough that the evidence might support some other conclusion, but

       it must positively require the conclusion contended for by the appellant before

       there is a basis for reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011)

       (citations omitted). “Findings are clearly erroneous only when the record

       contains no facts to support them either directly or by inference.” Id. at 502

       (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)). If the evidence

       and inferences support the trial court’s decision, we must affirm. Id. at 503.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 11 of 15
                          I. Remedy of Conditions Resulting in Removal

[23]   Mother argues that DCS failed to show a reasonable probability that the

       conditions that resulted in the removal of the child will not be remedied. To

       determine whether conditions are likely to be remedied, the trial court must

       examine a parent’s fitness to care for his or her child as of the time of the

       termination hearing, taking into account any evidence of changed conditions.

       In re S.P.H., 806 N.E.2d at 881. Additionally, the court must look at the services

       offered as well as the parent’s response in meeting their responsibilities. In re

       R.H., 892 N.E.2d 144, 150 (Ind. Ct. App. 2008).


[24]   In support of its conclusion that a reasonable probability existed that the

       conditions that resulted in the child’s removal or continued placement outside

       of the home will not be remedied, the trial court relied on several different

       indicators. Namely, the court pointed to Mother’s repeated arrests, making the

       choice not to visit her newborn for several months by moving out of town, and

       Mother’s lack of consistency and progress on any of the issues she faces.

       Appellant’s App. pp. 4–5.


[25]   The proceedings in this matter began with the filing of a CHINS on July 11,

       2016. It concluded with a termination hearing on April 19, 2018. In between,

       Mother had nearly two years during which a multitude of services and

       opportunities for assistance were made available to her. However, instead of

       complying with the court and working to become sober and stable in order to be

       able to provide for her child, Mother fought with service providers, failed or

       missed drug screens, resisted services, was inconsistent in attending substance
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 12 of 15
       abuse therapy, and accumulated a number of substance abuse-related arrests

       and convictions.

[26]   Mother argues that DCS failed to establish appropriate services for her. Our

       review of the services provided and Mother’s response to the services convinces

       us that Mother was provided with more than sufficient opportunity to remedy

       the conditions that resulted in the child’s removal and she simply failed to do

       so. When Mother requested that the case be transferred to Marion County,

       Mother was already noncompliant with services. At an August 17 disposition

       hearing, Mother objected to several services being offered by DCS. In another

       incident, a parent aide was able to assist Mother in procuring a place at a shelter

       when she became homeless in Vanderburgh County. However, Mother

       threatened this parent aide and was asked to leave the shelter. Mother then left

       Vanderburgh County. Although the case was later transferred to Vigo County,

       and services became available to her in Vigo County, Mother failed to

       participate with any consistency and continued with her criminal behavior.

[27]   As such, we cannot find error with the trial court’s conclusions that a

       reasonable probability exists that the conditions resulting in removal will not be

       remedied. Because the statute only requires DCS to prove either subsection (i)

       or (ii) of Indiana Code section 31-35-2-4(b)(2), and subsection (i) has been

       established, we do not need to reach a conclusion regarding the court’s

       conclusion with respect to subsection (ii). A.K., 924 N.E.2d at 220.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 13 of 15
                                       II. Best Interest of the Child

[28]   Mother also challenges the trial court’s findings in Paragraph 4(c), which

       concludes that termination is in the best interest of the child, as required by

       Indiana Code section 31-35-2-4(b)(2)(c). In reaching this conclusion, the trial

       court noted that the child needed to continue in the stable and loving

       environment in which R.J. was placed.


[29]   The evidence demonstrated that R.J. had developed anxiety about visitation

       with Mother, saying “no” when R.J. saw the backpack the foster parents

       regularly sent with R.J. to visitation. R.J. would also have nightmares after

       visitation. Mother disregarded doctor’s recommendations regarding R.J.’s

       medical needs. Mother engaged in substance-related criminal activity, was

       incarcerated repeatedly, resisted services, failed drug screens, and failed to

       follow up with her substance abuse treatment. The evidence clearly

       demonstrated Mother is unable to provide R.J. with a safe and stable home.

[30]   R.J. was happy and flourishing in her pre-adoptive placement. She was meeting

       all developmental milestones, and the foster parents were attentive to R.J.’s

       medical needs. The child was bonded to her foster parents, and the FCM

       believed R.J. saw her foster parents as her parents. More than sufficient

       evidence existed for the trial court to conclude that termination was in the best

       interests of the child.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 14 of 15
                                                 Conclusion

[31]   For the duration of nearly two years of reunification efforts, Mother struggled

       with sobriety and stability. She either failed or refused to engage in services and

       was unable to meet the needs of the child. For these reasons, we affirm the trial

       court’s termination of J.J.’s parental rights.


[32]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1412 | November 30, 2018   Page 15 of 15
