MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Feb 18 2020, 7:06 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                                    ATTORNEYS FOR APPELLEE
Katharine Vanost Jones                                    Curtis T. Hill, Jr.
Evansville, Indiana                                       Attorney General of Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Termination of the                             February 18, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
J.H. and D.J.;                                            19A-JT-1544
J.J. (Mother),                                            Appeal from the Vanderburgh
                                                          Superior Court
Appellant-Respondent,
                                                          The Honorable Brett J. Niemeier,
        v.                                                Judge
                                                          The Honorable Renee Allen
The Indiana Department of                                 Ferguson, Magistrate
Child Services,                                           Trial Court Cause No.
                                                          82D04-1810-JT-1961
Appellee-Petitioner.
                                                          82D04-1810-JT-1962



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020                    Page 1 of 12
                                             Statement of the Case
[1]   J.J. (“Mother”) appeals the termination of the parent-child relationship with her

      children, J.H. (“J.H..”) and D.J. (“D.J.”) (collectively “the children”), 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 the children’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 the children’s well-being; and (3) termination

      of the parent-child relationship is in the children’s best interests. Concluding

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

      the parent-child relationships, we affirm the trial court’s judgment.1


[2]   We affirm.


                                                             Issue
                 Whether there is sufficient evidence to support the involuntary
                 termination of Mother’s parental rights.


                                                             Facts
[3]   Mother is the parent of daughter P.R., who was born in October 2009; son

      D.R., who born in February 2011; son J.H., who was born in June 2013; and




      1
          The children’s fathers voluntarily relinquished their parental rights and are not parties to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020                       Page 2 of 12
      son D.J., who was born in March 2016. This appeal concerns only sons J.H.

      and D.J.


[4]   In July 2014, the State charged Mother with felony domestic battery against

      J.H.’s father, J.E. (“J.E.”). Mother pleaded guilty and was ordered to complete

      a domestic battery intervention program, which she did not do. In June 2015,

      before the birth of D.J., the State charged Mother with domestic battery against

      D.J.’s father, E.J. (“E.J.”), in the presence of a child under sixteen.


[5]   In July 2015, Mother called 911 and reported that her three children saw an

      intoxicated E.J. punch her in the face and head, push her, drag her around the

      house, and kick her in the back several times while she was on the ground.

      When police arrived, E.J. told the officers that Mother had choked him with a

      belt and had hit him several times.


[6]   The following month, August 2015, pursuant to the terms of an informal

      adjustment with DCS, the trial court ordered Mother and E.J. to: (1) contact

      DCS weekly; (2) allow a family case manager or other service providers to

      make announced or unannounced visits to the home; (3) allow a family case

      manager to enter the home; (4) enroll in programs recommended by DSC or

      other service providers; (5) maintain suitable housing; and (6) complete a

      domestic violence assessment. In December 2015, DCS reported that Mother

      and E.J. had substantially complied with terms of the informal adjustment and

      did not request a continuation of it.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020   Page 3 of 12
[7]   In February 2017, Mother called 911 and reported that E.J. was intoxicated and

      “causing problems.” (Ex. Vol. 2 at 42). Specifically, she reported that he had

      poked Mother in the forehead and had slapped her daughter in the face. Police

      officers were dispatched to the scene. When the officers arrived, E.J. told them

      that Mother had hit him with her phone.


[8]   Two days later, based on a police report of the dispatch, DCS assigned Family

      Case Manager William Wargel (“FCM Wargel”) to assess the family. FCM

      Wargel went to the family’s home and knocked at the door. When the parents

      eventually opened the door, FCM Wargel observed them to have slurred speech

      and glassy eyes. The family case manager asked Mother and E.J. if they were

      under the influence of alcohol or drugs, and the parents told him to “fuck off”

      and shut the door in his face. (Tr. Vol. 2 at 106). FCM Wargel contacted law

      enforcement because he was concerned about the children in the home with

      intoxicated parents. Parents tested positive for THC and an opioid. FCM

      Wargel observed that the home had no bedding or furniture for the children.


[9]   In an attempt to keep the children in the home, FCM Wargel referred parents to

      the Homebuilders program. Although parents initially agreed to participate in

      the program, they attended only one session before the family disappeared.

      When FCM Wargel found the family three weeks later, he learned that the

      older children had not been to school during that time. In addition, all the

      children were dirty and had a strong odor. They said they were hungry and had

      not eaten that day.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020   Page 4 of 12
[10]   The children were removed from the home, and DCS filed petitions alleging

       that the children were in need of services (“CHINS”). J.H. and D.J. were

       adjudicated to be CHINS in March 2017. In a dispositional order, the trial

       court ordered mother to: (1) complete a domestic violence assessment and

       follow all treatment recommendations; (2) complete a substance abuse

       assessment and follow treatment recommendations; (3) remain drug and

       alcohol free; (4) submit to urine drug screens; (5) obtain and maintain suitable,

       safe, and stable housing; (6) obey the law; and (7) attend supervised visitation

       with the children.


[11]   J.H. and D.J. returned home for a trial visit in June 2017. A DCS case worker

       stopped by Mother’s home to check on the children and discovered that the

       home had no workable utilities. There was trash on the floor, clothing piled in

       the bathtub, and the toilets were backed up with feces, causing a foul odor in

       the house. In addition, there was no refrigerator or food in the house. The

       children were dirty and had bite marks from fleas or mosquitoes. Based on the

       conditions in the home, DCS removed J.H. and D.J. and placed them in foster

       care.


[12]   In October 2017, Mother tested positive for methamphetamine and

       amphetamine. She also attended only six of twelve scheduled visits with the

       children from August to October 2017. DCS suspended the visits in November

       2017 after D.J. contracted MRSA from E.J. during a visit. DCS requested that

       Mother and E.J. see a doctor and told them that visits would resume with a

       doctor’s note that neither parent was contagious. Mother did not comply with

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020   Page 5 of 12
       DCS’s request. FCM Meredith further testified that the following month, the

       trial court told Mother it would reinstate visits after she had completed two

       consecutive drug screens that were negative. Mother did not complete two

       consecutive negative drug screens.


[13]   In April 2018, Mother texted FCM Meredith and asked what “services that she

       needed to do to get her kids back.” (Tr. Vol. 2 at 157). FCM Meredith

       responded that she needed to get stable housing and take urine drug screens.

       He asked Mother to come to his office at her earliest convenience for a drug

       screen. Later that day, he received the following text message from Mother: “I

       need clean pee.” (Tr. Vol. 2 at 157). FCM Meredith responded that he thought

       the message had been sent to him by mistake. He later received a text saying

       that “[t]his was not [Mother].” (Tr. Vol. 2 at 158). Mother never submitted a

       drug screen. She was arrested for burglary in August 2018. She subsequently

       pleaded guilty to the charged offense and was sentenced to one year of

       probation.


[14]   Based on Mother’s noncompliance with the CHINS dispositional order, DCS

       filed petitions to terminate Mother’s parental relationships with J.H. and D.J. in

       October 2018. At the three-day termination hearing in January, March, and

       April 2019, DCS Family Case Manager Brandon Meredith (“FCM Meredith”)

       testified that he had been assigned to the case in July 2017 after the children had

       been removed from Mother for the second time. According to FCM Meredith,

       Mother had not complied with the CHINS dispositional order requirements

       and had not seen her children in over a year.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020   Page 6 of 12
[15]   When asked whether Mother was likely to remedy the reasons requiring the

       removal of her children, FCM Meredith responded that she was not.

       Specifically, FCM Meredith explained as follows:


               Because [Mother] has had since 2017 to do services. I have told
               her services she needs to get done. I’ve given her repeated
               services over the years. She has shown little – really no interest
               in completing services. She has also not even talked to ask about
               her kids and how they’re doing. So at this point I just don’t see
               that she’s going to complete any service and remedy any of the
               issues, especially with the housing situation. She’s been to
               multiple homes over the last two years. When I say multiple,
               she’s testified about five or more homes.


       (Tr. Vol. 2 at 160-61). FCM Meredith also testified that it was in the children’s

       best interests to have Mother’s parental rights terminated. According to the

       family case manager, the children were in a loving and caring pre-adoptive

       home where they had stability. FCM Meredith also testified that although he

       remained the case manager on this case until February 2019, all

       communication for the case was routed through another case manager after

       Mother had threatened FCM Meredith’s child.


[16]   Also at the hearing, CASA Deborah Gamache (“CASA Gamache”) testified

       that she did not think it was likely that Mother would remedy the reasons

       requiring removal of her children. CASA Gamache also testified that it was in

       the children’s best interest to have Mother’s parental rights terminated because

       she had not developed skills to provide for the children.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020   Page 7 of 12
[17]   In June 2019, the trial court issued a detailed order terminating Mother’s

       parental rights. Mother now appeals the termination.


                                                    Decision
[18]   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

       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.


[19]   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.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020   Page 8 of 12
[20]   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.

                        (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.


[21]   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 the children’s removal or the reasons for placement

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

       parent-child relationship poses a threat to the children’s well-being.


[22]   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


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020   Page 9 of 12
       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 the children’s

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

       remedied.


[23]   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.3d 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.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020   Page 10 of 12
[24]   Here, the children were removed from Mother’s home because of neglect and

       Mother’s drug use. Our review of the evidence reveals that at the time of the

       termination hearing, Mother had not completed the court-ordered requirements

       in the CHINS dispositional order. Specifically, she had not completed a

       domestic violence program or a substance abuse assessment. She had not

       remained alcohol and drug free or obtained suitable, safe, and stable housing.

       She had not seen her children in over a year, and she had failed to obey the law

       when she was arrested for burglary in August 2018. This evidence supports the

       trial court’s conclusion that there was a reasonable probability that the

       conditions that resulted in the children’s removal would not be remedied. We

       find no error.


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

       in the children’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. “‘A parent’s

       historical inability to provide adequate housing, stability and supervision

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

       continuation of the parent-child relationship is contrary to the child’s best

       interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020   Page 11 of 12
       Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

       denied, superseded by rule on other grounds). Further, the testimony of the service

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

       McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

       Ct. App. 2003).


[26]   Here, our review of the evidence reveals that Mother has historically been

       unable to provide stability and supervision for her children and was unable to

       provide the same at the time of the termination hearing. In addition, FCM

       Meredith and CASA Gamache testified that termination was in the children’s

       best interests. The testimony of these service providers, as well as the other

       evidence previously discussed, supports the trial court’s conclusion that

       termination was in the children’s best interests. There is sufficient evidence to

       support the terminations. 2


[27]   Affirmed.


       May, J., and Crone, J., concur.




       2
         Mother also argues that the “trial court failed to enter its judgment in imperative form under either
       subsection (i) or subsection (ii) of the statute inviting the Appellate Court to guess the grounds upon which
       the trial court entered its judgment.” (Mother’s Br. at 3). According to Mother, “by not entering a decision
       under either subsection (i) or subsection (ii), the trial court leaves it to the Appellate Court to determine not
       only whether DCS met its burden but also upon which section of the statute the trial court entered its
       judgment.” ( Mother’s Br. at 15). We disagree with Mother’s characterization of the trial court’s judgment.
       Specifically, our review of the trial court’s order reveals that the trial court concluded that DCS had proved
       both subsection (i), that there is a reasonable probability that the conditions that resulted in the children’s
       removal or the reasons for placement outside the children’s home would not be remedied, and subsection (ii),
       that a continuation of the parent-child relationship posed a threat to the children’s well-being. In addition,
       the trial court set forth specific facts in support of its conclusions. We find no error.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020                  Page 12 of 12
