MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Sep 19 2018, 9:15 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
Andrew W. Foster                                          Curtis T. Hill, Jr.
Rockport, Indiana                                         Attorney General of Indiana

                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Termination of the                              September 19, 2018
Parent-Child Relationships of:                            Court of Appeals Case No.
                                                          18A-JT-790
H.H., A.H., and A.S. (Minor
Children)                                                 Appeal from the Spencer Circuit
                                                          Court
and
                                                          The Honorable Jon Dartt, Judge
M.R.,                                                     The Honorable Lucy Goffinet,
Appellant-Respondent,                                     Special Judge
                                                          Trial Court Cause No.
        v.                                                74C01-1708-JT-185, 74C01-1708-
                                                          JT-186, 74C01-1708-JT-187
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018                  Page 1 of 12
      Altice, Judge.


                                                Case Summary


[1]   M.C.R. (Mother) appeals following the termination of her parental rights to her

      three children, H.H., A.H., and A.S. (collectively, the Children). Mother

      argues that the evidence was insufficient to support the termination of her

      rights.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In September 2015, Mother and the Children, then ages seven, eight, and nine,

      lived with Mother’s boyfriend of several years. Mother and her boyfriend had a

      history of domestic violence and drug use. The mobile home in which they

      lived was dirty, unsafe, and unsuitable for the Children. The Indiana

      Department of Child Services (DCS) became involved with the family on

      September 8, 2015, and the Children were removed from the home a week later

      when Mother tested positive for methamphetamine and other illegal substances

      and the conditions of the home had not been adequately remedied. After the

      Children’s removal, Mother tested positive for illegal drugs in September and

      October 2015.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018   Page 2 of 12
[4]   The Children were adjudicated CHINS on April 19, 2016,1 and a dispositional

      order was issued following a hearing on May 9, 2016. Mother became

      generally compliant with services and things were going well. Mother passed

      drug screens, participated in family therapy and home-based services, visited

      with the Children, and became employed. Mother and her boyfriend also

      cleaned up the trailer and took domestic violence classes. As a result, the

      Children were returned to Mother for a trial home visit in September 2016.

      During the trial home visit, however, Mother lost her job and her relationship

      with her boyfriend ended. This resulted in her “downhill spiral” and return to

      drug use. Transcript at 54.


[5]   On or about December 16, 2016, a therapy provider, Olivia Golike, went to

      Mother’s trailer upon discovering that H.H. was not at school for a therapy

      session. Golike found all three children home alone inside the trailer and not at

      school. They had not eaten breakfast and had not seen Mother. Golike

      contacted the family case manager (FCM), Channell Hood, who also came to

      the home. When Mother returned home that morning, she submitted to a drug

      screen. The Children were removed immediately from Mother’s home and

      returned to foster care. Mother’s drug test came back positive for

      methamphetamine.




      1
        The fact-finding hearing on the CHINS petition took place on November 23, 2015. The reason for the
      significant delay in issuing the order finding the Children to be CHINS is unclear from the limited record
      before us.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018                 Page 3 of 12
[6]   After the failed trial home visit, Mother continued using drugs and was

      homeless by March 2017. She stopped showing up for visits with the Children

      around March 2017 and has not seen them since. Mother’s sporadic

      participation in services during early 2017 eventually ceased, and she had no

      contact with service providers in May and June. All services for Mother were

      officially put on hold in June due to Mother’s noncompliance. FCM Hood

      finally located Mother in July 2017 and attempted to reengage Mother in

      services. Thereafter, Mother participated irregularly in services and was placed

      on twenty-four-hour call-ahead due to problems with her not showing up.

      Mother continued using illegal drugs and failing to obtain mental health and/or

      substance abuse treatment as recommended by DCS.


[7]   In August 2017, the permanency plan in the CHINS case was changed to

      concurrent plans of reunification and adoption. In the August 17, 2017 order

      approving the permanency plan, the CHINS court found in part:


              [Mother has] not complied with the [Children’s] case plan.
              [Mother] stopped participating in parent aide and therapy
              sessions. She participated in 4 drug screens and was positive on
              4/04/2017 which was the last hearing date. [She] has not
              participated in any support groups or treatment programs. She
              was not responding to any requests to come into the DCS office
              to submit [to] drug screens or otherwise. [Mother] is currently
              homeless.


      Appellee’s Appendix at 66. DCS filed verified petitions for involuntary

      termination of parental rights on August 21, 2017.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018   Page 4 of 12
[8]   A periodic case review hearing was held in the CHINS case on November 13,

      2017. In the order from this review hearing, the court found that Mother was

      still not compliant with the case plan, explaining:


              Mother is to be screened at the DCS office 2-3x per week. At the
              last court hearing, she tested positive for amphetamine,
              methamphetamine, and THC…. She was negative on screens in
              September, however, in October, she missed several screens.
              Home based therapy was reinstated in August to address goals of
              relapse prevention, coping skills, dealing with her depression and
              trauma as well as relationship with the children and ex-boyfriend.
              She missed the first scheduled appointment and admitted to
              using methamphetamine during that time slot. Mother
              scheduled an evaluation with an in-patient treatment provider,
              however, she cancelled due to reporting that someone stole her
              money for the evaluation. Mother has reported that she
              participates in AA/NA but has never provided documentation.
              She has never consistently attending [sic] her therapy sessions.
              Mother is employed, but she does not have stable transportation
              at this time.


      Id. at 75-76. Immediately after this hearing, Mother informed FCM Hood that

      she was going into a rehabilitation facility that day. She did not go, nor did she

      contact FCM Hood, continue with therapy, or comply with drug screens.

      Again, Mother maintained no contact with service providers. Further, a drug

      screen taken at this hearing tested positive for THC.


[9]   On December 11, 2017, Mother entered a thirty-day inpatient treatment

      program. Thereafter, she moved into a shelter and began intensive outpatient

      treatment. The treatment was not arranged through DCS, and Mother did not

      reach out to FCM Hood until the week before the termination hearing.
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018   Page 5 of 12
[10]   The termination fact-finding hearing took place on January 22, 2018. At the

       hearing, Mother acknowledged her long battle with drugs and that she had not

       seen the Children since early 2017. Mother indicated that during much of 2017

       she was using drugs, homeless, unstable, and even suicidal. Mother testified

       that her most-recent rehabilitation effort, which she started the month prior to

       the termination hearing, was her sixth time in rehab. When asked why this

       time will be different, Mother responded: “I was doing everything okay and

       then because of losing everything, I fell apart but this time I’m determined. I

       don’t want to lose my kids.” Id. at 17. Regarding substance abuse, Mother

       stated that she was participating in a twelve-step program now, with a sponsor

       and a support group. She acknowledged, however, that in the past she had

       been involved in a twelve-step program and then quit and relapsed. At the time

       of the hearing, Mother was unemployed, living in a shelter, without a vehicle,

       and less than two months clean and sober.


[11]   The CASA, Carol Lichtey, testified that the Children had not spoken about

       Mother to her since April 2017. In Lichtey’s opinion, termination is in the best

       interests of the Children after a history of ups and downs with Mother and,

       particularly, the instability of the prior two years. She testified that each move

       “takes a little bit more of them away.” Id. at 47. Lichtey noted that H.H., the

       oldest of the Children, was becoming cynical and recently stated, “I don’t get

       attached – people come and people go.” Id. at 48.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018   Page 6 of 12
[12]   Among other things, FCM Hood testified in detail about Mother’s lack of

       cooperation with services and lengthy absences after the failed trial home visit

       in late 2016. Regarding the Children’s best interests, FCM Hood testified:


               I believe they need to know where they’re going to be and I think
               if they’re with mom, they’re never going to know where they’re
               going to be from day to day. That’s just been the pattern that I’ve
               seen from the kids – talking to the kids about their past. You
               know, that’s the life they have lived and they don’t – their [sic]
               done with that.


       Id. at 63. FCM testified that the permanency plan for the Children following

       termination was adoption.


[13]   At the conclusion of the hearing on January 22, 2018, the court terminated

       Mother’s parental rights. The court entered a written termination order on

       February 26, 2018, which provided in relevant part:


               There is a reasonable probability that the conditions that resulted
               in the [Children’s] removal or the reasons for the placement
               outside the parent’s home will not be remedied in that: The case
               has been open for two years. The mother still has no stable
               housing. The mother has only one month of doing well in
               rehabilitation. During the CHINS case, mother failed to do drug
               evaluations and rehabilitation. The mother has not visited the
               children in a year. The children have been subjected to domestic
               violence. The mother had CPS history in other state[s]. The
               mother does not have a consistent plan of action. The mother
               has been inconsistent with children and the children’s history
               shows inconsistency. The children need stability and want
               stability. The mother has continued to test positive for illegal
               substances throughout the life of the CHINS case.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018   Page 7 of 12
       Appellant’s Appendix at 8. Upon finding that termination was in the best

       interests of the Children, the court stated to Mother at the hearing: “I am glad

       and I am proud that for the last month you have held it together and that you

       have completed the in-patient treatment but your kids deserve a permanent

       home and they want that”. Transcript at 71.


[14]   Mother appeals the termination of her parental rights. Additional information

       will be provided below as needed.


                                           Discussion & Decision


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

       evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

       265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

       and reasonable inferences most favorable to the judgment. Id. In deference to

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

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

       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[16]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018   Page 8 of 12
       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[17]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:


               (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[.]


       Ind. Code § 31-35-2-4(b)(2)(B). The trial court here determined that DCS had

       proven both subsections (b)(2)(B)(i) and (b)(2)(B)(ii). Because DCS was

       required to establish only one of these by clear and convincing evidence, we

       focus our review on the requirements of subsection (b)(2)(B)(i).


[18]   In determining whether there is a reasonable probability that the conditions

       resulting in a child’s removal or continued placement outside the home will not

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018   Page 9 of 12
       be remedied, the trial court must judge a parent’s fitness to care for his or her

       child at the time of the termination hearing, taking into consideration evidence

       of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001),

       trans. denied. The court 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 child. Id. In conducting this inquiry, courts may consider

       evidence of a parent’s prior criminal history, drug and alcohol abuse, history of

       neglect, failure to provide support, and lack of adequate housing and

       employment. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244,

       1251 (Ind. Ct. App. 2002), trans. denied. Further, it is within the trial court’s

       discretion to disregard efforts made only shortly before termination and to

       weigh more heavily a parent’s history of conduct prior to those efforts. K.T.K.

       v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1234 (Ind. 2013). The court may

       also consider the parent’s response to the services offered through DCS. Lang v.

       Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App.

       2007), trans. denied.


[19]   On appeal, Mother does not challenge the trial court’s specific findings of fact.

       She argues only that the trial court clearly erred when it determined that there

       was a reasonable probability that the conditions that resulted in the Children’s

       removal or the reasons for the placement outside the parent’s home will not be

       remedied. In this regard, Mother argues that she was actively involved in drug

       rehabilitation at the time of the termination hearing and in 2016 had nearly

       completed a successful trial home visit with the Children. Noting her progress

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018   Page 10 of 12
       during the first half of the CHINS proceedings and her recent progress after a

       significant period of relapse, Mother asserts that she has been “either compliant

       or actively helping herself for approximately sixteen (16) of twenty-eight (28)

       months, or 57% of the total life of the CHINS case.” Appellant’s Brief at 8.


[20]   Like the trial court, we applaud Mother for her recent efforts at rehabilitation

       and wish the best for her. But forty-two days of treatment at the eleventh hour

       is not enough considering the entire history of this case and Mother’s past

       repeated failed attempts at maintaining a drug-free life. Mother’s progress

       during the first year of the CHINS proceeding is well-documented, and she was

       doing what was needed to regain custody of the Children. When life got

       difficult during the trial home visit in December 2016, however, Mother’s life

       quickly fell apart again, and she returned to using methamphetamine. Over the

       next year, Mother continued using drugs and was not compliant with services.

       For significant periods of time, service providers could not even find her. She

       stopped attending visits with the Children, became homeless, and failed to

       commence drug and mental health treatment as recommended by DCS. Not

       until December 2017 did Mother seek treatment in an inpatient program. This

       was a year after the failed trial home visit, at least nine months after she had last

       seen the Children, and more than two years after the CHINS proceedings

       commenced. At the time of the termination hearing, Mother was living in a

       shelter, was jobless, had been clean for only about forty-two days, and had not

       seen the Children for nearly a year.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018   Page 11 of 12
[21]   In sum, the record establishes that Mother was not fit to care for the Children at

       the time of the termination hearing.2 Moreover, her long history of drug abuse

       and repeated relapses after treatment, as well as her inconsistent participation in

       DCS services, indicate a substantial probability of future neglect or deprivation

       of the Children. The Children have been in the system for well over two years

       and need, want, and deserve to have permanency in their lives, which Mother

       has been unable to provide for them. The trial court did not err in determining

       that there was a reasonable probability that the conditions that resulted in the

       Children’s removal or the reasons for the placement outside Mother’s home will

       not be remedied.


[22]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       2
         Mother directs us to In re Ma.J., 972 N.E.2d 394 (Ind. Ct. App. 2012) in support of her argument for
       reversal of the termination order. In Ma.J., we expressly noted, “this is not a case where the parent’s progress
       has been inconsistent or last-minute.” Id. at 404. Rather, the mother in that case had “eight months of solid
       progress in each area of concern”. Id. at 396. Further, at the time of the termination hearing, she had an
       appropriate home, had been working, and had been visiting regularly with the children. In the case at hand,
       Mother was not similarly situated at the time of the hearing and had not established the same degree of
       progress.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018                 Page 12 of 12
