MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                          Jun 12 2020, 7:43 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                                    ATTORNEY FOR APPELLEE
Karyn Price                                               Robert J. Henke
Crown Point, Indiana                                      Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Termination of the                             June 12, 2020
Parent-Child Relationship of J.T.                         Court of Appeals Case No.
(Minor Child);                                            19A-JT-2457
M.P. (Mother),                                            Appeal from the Lake Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Thomas P.
        v.                                                Stefaniak, Jr., Judge
                                                          Trial Court Cause No.
The Indiana Department of                                 45D06-1904-JT-120
Child Services,
Appellee-Petitioner.



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2457 | June 12, 2020               Page 1 of 10
                                             Statement of the Case
[1]   M.P. (“Mother”) appeals the termination of the parent-child relationship with

      her son, J.T. (“J.T.”), claiming that the Department of Child Services (“DCS”)

      failed to prove by clear and convincing evidence that: (1) there is a reasonable

      probability that the conditions that resulted in J.T.’s removal or the reasons for

      placement outside Mother’s home will not be remedied; (2) a continuation of

      the parent-child relationship poses a threat to J.T.’s well-being; and (3)

      termination of the parent-child relationship is in J.T.’s best interests.

      Concluding that there is sufficient evidence to support the trial court’s decision

      to terminate the parent-child relationship, we affirm the trial court’s judgment.1


[2]   We affirm.


                                                            Issue
                 Whether there is sufficient evidence to support the termination of
                 the parent-child relationship.


                                                            Facts
[3]   Mother is the parent of J.T., who was born in April 2013. In June 2015, DCS

      was notified that Mother’s ten-month-old daughter had died while in Mother’s

      care. DCS Family Case Manager Jennifer Miller (“FCM Miller”) immediately

      went to Mother’s home to speak with Mother. FCM Miller noticed that




      1
          The trial court also terminated Father’s parental rights; however, Father is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2457 | June 12, 2020                          Page 2 of 10
      Mother, two-year-old J.T., and J.T.’s two older brothers were all living in a

      one-bedroom apartment. Mother’s daughter had also lived in the home before

      her death. The only food in the home was a pot of rice on the stove that J.T.’s

      older brother had cooked the previous day. FCM Miller also noticed a broken

      kitchen window. The window had broken glass hanging from it, and Mother

      had made no effort to secure the window. Mother explained that she did not

      want to cut herself. In addition, FCM Miller noticed several shards of broken

      glass in the kitchen and living room. Some of the pieces were located very near

      to where the children had been sleeping. Mother admitted that she used

      cocaine regularly and had recently used it in the home with a friend. DCS

      removed J.T. and his two brothers from the home because of Mother’s drug use

      and the conditions of the home.


[4]   Two days later, DCS filed a petition alleging that J.T. was a Child in Need of

      Services (“CHINS”). The trial court adjudicated J.T. to be a CHINS in

      September 2015 and ordered Mother to: (1) complete a parenting assessment

      and follow all recommendations; (2) complete a substance abuse assessment

      and follow all recommendations; (3) complete a psychological assessment and

      follow all recommendations; (4) submit to random drug screens; (5) participate

      in supervised visitation; and (6) participate in homebased services.


[5]   Nearly two years later, in June 2017, the trial court suspended Mother’s

      visitation with J.T. because she was not complying with the CHINS

      dispositional order. The trial court told Mother that she could resume visitation



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2457 | June 12, 2020   Page 3 of 10
      with J.T. after she had complied with the dispositional order for thirty days.

      Mother never did so.


[6]   In April 2019, DCS filed a petition to terminate Mother’s parental relationship

      with J.T. At the August 2019 termination hearing, DCS Family Case Manager

      Ra’Quell Mack (“FCM Mack”) testified that Mother had initially completed

      parenting and substance abuse assessments but had not followed the assessors’

      recommendations. Mother had also failed to complete a psychological

      assessment. According to FCM Mack, Mother had tested positive for cocaine

      in June 2019 and three additional times that month. In addition, Mother had

      not seen J.T. in two years.


[7]   FCM Mack further testified that Mother had just given birth to another child in

      July 2019. FCM had visited Mother’s home following the child’s birth and had

      noticed a white powder that looked like cocaine on a table. FCM Mack had

      also noticed a jar with green leaves and stems that smelled like marijuana.

      During the visit, Mother admitted that her infant slept on a four-foot tall

      changing table. Based on these conditions, and concerned for the safety of the

      infant, FCM filed an abuse/neglect report with DCS regarding the infant.


[8]   In addition, FCM Mack testified that J.T. had been placed in a pre-adoptive

      foster home in April 2019 when he was six years old. According to FCM

      Mack, J.T. was “thriving” in foster care. (Tr. Vol. 2 at 42). FCM Mack further

      testified that the foster parents had a “great bond” with J.T. and had worked

      with J.T. over the summer so that he did not have to repeat kindergarten and


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2457 | June 12, 2020   Page 4 of 10
       could be promoted to the first grade. (Tr. Vol. 2 at 42). FCM Mack also

       testified that when six-year-old J.T. had been placed with foster parents, the

       child was “defecating on himself.” (Tr. Vol. 2 at 42). Foster parents worked

       with J.T. and took him to a specialist, and this issue has been resolved.


[9]    When asked whether Mother was any closer to remedying the conditions that

       had led to J.T.’s removal four years ago, FCM Mack responded, “No.

       [Mother] is actually in the same spot. She is still using cocaine . . . regularly.”

       (Tr. Vol. 2 at 44). FCM Mack also testified that termination of Mother’s

       parental relationship with J.T. was in the child’s best interests “because of the

       continued substance abuse with [Mother and] inconsistent housing.” (Tr. Vol.

       2 at 43). FCM Mack further explained that “[Mother] ha[d] not participated in

       the case plan. She ha[d]n’t even done what she need[ed] to do for thirty days

       completely to get the child back or show that she want[ed] to have a

       relationship with the child. He hasn’t seen [Mother] since -- in over two years.”

       (Tr. Vol. 2 at 43).


[10]   In September 2019, four years after J.T. had been adjudicated a CHINS, the

       trial court issued an order terminating Mother’s parental relationship with J.T.

       Mother now appeals the termination.


                                                    Decision
[11]   Mother argues that there is insufficient evidence to support the termination of

       her parental rights. The Fourteenth Amendment to the United States

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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2457 | June 12, 2020   Page 5 of 10
       raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,

       the law provides for termination of that right when parents are unwilling or

       unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147

       (Ind. 2005). The purpose of terminating parental rights is not to punish the

       parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

       App. 1999), trans. denied.


[12]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[13]   A petition to terminate parental rights 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.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2457 | June 12, 2020   Page 6 of 10
                        (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.

       IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[14]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she contends that the evidence

       is insufficient to show that there is a reasonable probability that: (1) the

       conditions that resulted in J.T.’s removal or the reasons for placement outside

       the parent’s home will not be remedied; and (2) a continuation of the parent-

       child relationship poses a threat to J.T.’s well-being.


[15]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in J.T.’s removal or

       the reasons for his placement outside Mother’s home will not be remedied.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2457 | June 12, 2020   Page 7 of 10
[16]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.2d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).

       The trial court may also consider services offered to the parent by DCS and the

       parent’s response to those services as evidence of whether conditions will be

       remedied. Id. Requiring trial courts to give due regard to changed conditions

       does not preclude them from finding that a parent’s past behavior is the best

       predictor of her future behavior. E.M., 4 N.E.3d at 643.


[17]   Here, our review of the evidence reveals that J.T. was removed from Mother’s

       home because of Mother’s cocaine use and inappropriate housing. Four years

       after J.T.’s removal, Mother was still using cocaine. In fact, she tested positive

       for cocaine three times during the month of the termination hearing. Further,

       although Mother had initially completed parenting and substance abuse


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2457 | June 12, 2020   Page 8 of 10
       assessments, she had not followed the assessors’ recommendation. In addition,

       at the time of the hearing, Mother had not seen J.T. in two years. This

       evidence supports the trial court’s conclusion that there was a reasonable

       probability that the conditions that resulted in J.T.’s removal would not be

       remedied. We find no error.


[18]   Mother also argues that there is insufficient evidence that the termination was

       in J.T.’s best interests. In determining whether termination of parental rights is

       in the best interests of a child, the trial court is required to look at the totality of

       the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied. In so doing, the court must subordinate the interests of the parents to

       those of the child involved. Id. Termination of the parent-child relationship is

       proper where the child’s emotional and physical development is threatened. In

       re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court

       need not wait until the child is irreversibly harmed such that his physical,

       mental, and social development is permanently impaired before terminating the

       parent-child relationship. In addition, a child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

       may support a finding that termination is in the child’s best interests. McBride v.

       Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[19]   Here, our review of the evidence reveals that FCM Mack testified that J.T. is

       thriving in his pre-adoptive foster family and that termination was in J.T.’s best

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2457 | June 12, 2020   Page 9 of 10
       interests. FCM Mack’s testimony, as well as the other evidence previously

       discussed, supports the trial court’s conclusion that termination was in J.T.’s

       best interests.


[20]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court’s order.


[21]   Affirmed.


       Bradford, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2457 | June 12, 2020   Page 10 of 10
