MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Jan 17 2018, 9:13 am

regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             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
Renee M. Ortega                                           Curtis T. Hill, Jr.
Lake County Juvenile                                      Attorney General of Indiana
Public Defender’s Office
                                                          Evan Matthew Comer
Crown Point, Indiana                                      Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         January 17, 2018
Child Relationship of:                                    Court of Appeals Case No.
J.R.E., Jr. (Minor Child),                                45A04-1708-JT-1843
and                                                       Appeal from the Lake Superior
                                                          Court
R.F. (Mother),
                                                          The Honorable Thomas P.
Appellant-Respondent,                                     Stefaniak, Jr., Judge

        v.                                                Trial Court Cause No.
                                                          45D06-1701-JT-17

The Indiana Department
of Child Services,
Appellee-Petitioner



Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018           Page 1 of 15
[1]   R.F. (Mother) appeals the trial court’s order terminating her relationship with

      J.R.E., Jr. (Child), her minor child. Mother argues that there is insufficient

      evidence supporting the termination order. Finding the evidence sufficient, we

      affirm.


                                                         Facts
[2]   Child was born to Mother in April 2015.1 He was born at twenty-nine weeks

      gestation, weighing only one pound, twelve ounces, and testing positive for

      marijuana. At the time of his birth, Mother was homeless and unreachable by

      hospital employees for days at a time following her discharge. On May 12,

      2015, the Department of Child Services (DCS) filed a petition alleging that

      Child was a child in need of services (CHINS). Child remained hospitalized

      until June 10, 2015, when he was initially placed in a foster care facility and

      ultimately placed in relative care with his paternal aunt and uncle, with whom

      he has remained since that time. They plan to adopt him if the termination

      order becomes final.


[3]   The trial court eventually found that Child was a CHINS and ordered Mother

      to participate with the following services: substance abuse assessment,

      parenting assessment, home based case management, clinical assessment,




      1
        Child’s father voluntarily terminated his parental rights and is not participating in this appeal. In July 2016,
      the parents had another child who is also currently a ward of DCS because Mother did not have stable
      housing and the child showed signs of drug withdrawals at the time of birth. That child is not part of this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018              Page 2 of 15
      inpatient substance abuse treatment, random drug and alcohol screens,

      psychological evaluation, individual therapy, and supervised visitation.


[4]   As a child, Mother and her family were involved with DCS. She began using

      drugs at the age of eleven. Mother admits that for a lengthy period following

      Child’s birth and during the CHINS case, she continued to regularly use illegal

      drugs, including methamphetamine, marijuana, synthetic marijuana, and

      Xanax without a prescription. She also admits that her drug use caused her to

      miss many scheduled appointments with service providers and to become

      violent towards those around her.


[5]   At some point, DCS referred Mother to Genesis Outreach, an inpatient

      substance abuse rehabilitation program in Fort Wayne. Mother was

      sporadically violent while at Genesis, at one point violently ripping a

      showerhead out of the wall while she was bathing. Her treatment regimen

      became a revolving door, with Mother being repeatedly kicked out and

      accepted back into the program at regular intervals because of her violence and

      other behavioral problems. Mother was never able to advance past the first

      level of her treatment plan. On May 12, 2017, which was Mother’s birthday,

      she left Genesis permanently because staff would not allow her to consume

      alcohol at the facility or leave the facility to do so. After she left, Genesis staff

      found a medication in her belongings that patients commonly use to get high

      because it is not detectable through traditional drug screening methods.




      Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018   Page 3 of 15
[6]   Mother claims that she has refrained from substance abuse since February 2017.

      She admits, however, that she regularly drinks alcohol. She also admitted that

      she increased her alcohol consumption in the days leading up to the termination

      hearing. And she did not submit to any drug screens between May 2017, when

      she left Genesis, and July 2017, in the weeks leading up to the termination

      hearing.


[7]   In addition to substance abuse, Mother has struggled with violence and

      domestic violence throughout these proceedings. During Child’s

      hospitalization following his birth, Mother and Child’s father became involved

      in an altercation at the hospital, leaving Mother with bruises on her arm. In

      November 2016, Mother and her boyfriend got into a fight that led to law

      enforcement being called to the scene; Mother then became involved in a

      physical altercation with the responding officers. Mother and her boyfriend

      were both arrested as a result of the incident. She has been involved in several

      physical altercations with Child’s father and with her sister. Mother admits that

      her own use of alcohol and illegal drugs causes her to become violent. DCS

      referred Mother to domestic violence treatment but she did not complete that

      service.


[8]   Throughout the CHINS case, Mother was homeless for lengthy stretches of

      time, living in cars, shelters, and friends’ and relatives’ homes She had signed a

      six-month lease on an apartment in the days leading up to the termination

      hearing, but was unemployed and had no consistent source of income to pay

      the rent. She is wholly financially dependent on her boyfriend, whose only

      Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018   Page 4 of 15
       sources of income are seasonal lawn care work and sporadic odd jobs that he

       performs for out-of-state relatives.


[9]    Whether because of substance use or general instability, Mother was

       inconsistent with visitation with Child throughout the CHINS case. The family

       case manager testified that “Mom can go a month or two and have consistent

       visitations. She can also go for a couple months span and not have any

       visitation.” Tr. p. 77. When Mother attended visits, she was often unfocused

       and “sort of like sleepy,” causing observers to be concerned that she was under

       the influence of one or more substances. Id. at 79. Child is not attached to or

       bonded with Mother. He tolerates short visits with her, but becomes irritable

       after prolonged contact. She is unable to calm or soothe Child when he acts

       out, and on multiple occasions, Mother ended visits early because of Child’s

       outbursts. It is undisputed that he is thriving in his relative care placement, that

       he is bonded to his caregivers, and that they have provided him with a “loving,

       consistent, and stable family” where “a close, familial, stable relationship has

       developed and flourished.” Appellant’s App. Vol. II p. 25.


[10]   After Mother left her unsuccessful inpatient treatment at Genesis, in the months

       leading up to the termination hearing, DCS provided new referrals for services

       as part of a “final effort to help” Mother reunify with Child. Id. at 24. But at

       the time of the termination hearing, Mother had failed to complete substance

       abuse treatment, domestic violence counseling, therapy, or a psychiatric

       evaluation.



       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018   Page 5 of 15
[11]   On January 13, 2017, DCS filed a petition to terminate the parent-child

       relationship between Mother and Child. A factfinding hearing was held on July

       25, 2017, and on August 2, 2017, the trial court entered an order granting

       DCS’s petition to terminate. In pertinent part, the trial court found as follows:


               . . . Mother indicated that she missed her appointments with
               service providers due to her using drugs and not waking up for
               the appointments. Although mother obviously loves her child,
               mother has not been able to address her substance abuse issues.


                                                        ***


               After two years of services being provided to mother, mother has
               not been able to remedy the reasons for the original removal of
               this child. Mother continues with her instability. Mother
               testified that she obtained employment but quit to go to rehab for
               DCS. Although mother indicates that she has been clean since
               February 2017, mother continues with her instability. Mother
               further testified that she still uses alcohol two to three nights per
               week. Clearly, mother has not addressed her substance abuse
               issues. Mother has a history of sobriety before court dates, but
               would immediately use after the date has passed.


               Mother has not participated in the case plan for reunification.
               Mother did not participate with the service providers. Mother
               did not complete any aspect of the case plan for reunification.


               . . . Mother has a history of domestic violence. Domestic
               violence counseling was offered for mother and mother did not
               attend. Mother is living with her current boyfriend to which [sic]
               there has [sic] been numerous domestic violence issues. The
               abusive pattern continues.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018   Page 6 of 15
                                                 ***


        . . . Mother only completed the intake portion of therapy, but has
        not followed up with any actual therapy.


        Mother would appear at the visitations clearly under the
        influence of drugs. The visitation providers had to constantly
        monitor the visits due to mother not being able to focus on the
        child. Mother would often times appear very sleepy at the
        visitations.


                                                 ***


        Mother has clearly demonstrated a pattern of unwillingness to
        deal with the issues and to cooperate with those providing
        services. There has been no evidence presented that the
        conditions have changed. Mother has not completed a
        substance abuse program, domestic violence counseling, therapy
        or any other aspect of the case plan. Mother has not shown any
        pattern of stability in her life.


        The child has never been in either parent’s custody or care. . . .
        Neither parent has demonstrated an ability to independently
        parent this child and provide the necessary care, support and
        supervision. Even considering mother’s recent sobriety, there is
        no basis for assuming she will continue with her sobriety and
        complete the necessary services and find herself in a position to
        care for the child.


                                                 ***


        Neither parent is providing any emotional or financial support
        for the child. . . .


Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018   Page 7 of 15
                                                        ***


               It is in the best interest of the child and his health, welfare and
               future that the parent-child relationship between the child and his
               parents be forever fully and absolutely terminated.


       Appellant’s App. Vol. II p. 24-25. Mother now appeals.


                                    Discussion and Decision
                                       I. Standard of Review
[12]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018   Page 8 of 15
[13]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:


               (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 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.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018   Page 9 of 15
                        (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.


       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                                        II. Termination Order

                          A. Remedy of Reasons For Removal
[14]   Mother first argues that DCS did not prove by clear and convincing evidence

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

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

       remedied.2 In addressing this prong of the statute, DCS need not rule out all

       possibilities of change; instead, it must establish a reasonable probability that

       the parent’s behavior will not change. In re B.J., 879 N.E.2d 7, 18-19 (Ind. Ct.

       App. 2008).




       2
        Mother also challenges many of the trial court’s findings of fact. We will address these arguments within
       our analysis of the termination order.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018        Page 10 of 15
[15]   Here, the reasons that Child was initially, and continued to be, placed outside

       of Mother’s care and custody can be summarized as substance abuse, unstable

       housing and employment, and domestic violence.


                                         1. Substance Abuse
[16]   Perhaps the most significant reason for Child’s initial and continued placement

       outside of Mother’s care is Mother’s struggles with substance abuse.

       Throughout two years of the CHINS case, she has never successfully completed

       substance abuse treatment, either inpatient or outpatient. She admitted that she

       continued to abuse substances throughout much of the case. When Mother

       finally enrolled in inpatient treatment, she was frequently kicked out because of

       her violent behavior. She ultimately left inpatient treatment unsuccessfully

       when they would not allow her to consume alcohol on her birthday. She

       continues to drink alcohol multiple times per week.


[17]   The trial court found that Mother has not successfully addressed her substance

       abuse issues. She argues that she tested clean while enrolled in inpatient

       treatment and tested clean in the days leading up to the termination hearing.

       She claims that she remained clean during the months between her unsuccessful

       exit from inpatient treatment and July 2017, but the only evidence supporting

       this assertion is her own testimony. And in fact, there is evidence in the record

       that in May 2017, Mother was using substances that were known to be

       undetectable through traditional drug testing methods; she also admitted to

       using synthetic drugs to give the appearance of sobriety while actually


       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018   Page 11 of 15
       continuing to feed her ongoing drug addiction. Mother’s argument amounts to

       a request that we assess witness credibility and reweigh the evidence—a request

       we decline. The record reveals that Mother has never successfully completed

       substance abuse treatment, meaning that the trial court’s finding to that effect

       was not erroneous.


[18]   Mother also argues that the trial court erred by focusing on her admitted

       alcohol use, contending that she had no history of alcohol abuse. The reason

       that she left inpatient treatment, however, was her desperate desire to drink

       alcohol. This, alone, supports a concern for her alcohol use. And when

       alcohol consumption is placed within the overall picture of Mother’s substance

       abuse issues, it was not unreasonable for the trial court to note it as an issue.


[19]   Additionally, Mother quarrels with the trial court’s finding that Mother

       appeared to be under the influence of drugs during some of her visits with

       Child. The family case manager testified that Mother “appeared under the

       influence” at visits, to a point that the visitation monitor asked her supervisor to

       help observe the situation. They reported that Mother “appeared not totally

       focused on the things. She appeared to—that her eyes were, sort of like sleepy.

       That she was not being able to provide complete supervision of the child.” Tr.

       p. 79. This evidence supports the trial court’s finding.3




       3
         The remainder of Mother’s arguments regarding the trial court’s findings of fact are mere requests to
       reweigh the evidence, which we decline to do, or quarrels with specific wording, which we decline to address.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018        Page 12 of 15
[20]   In sum, while we credit the apparent progress that Mother made with respect to

       substance abuse by the time of the termination hearing, it does not make up for

       the fact that for two years, she wholly failed to address this very serious

       problem. We do not find that this small period of alleged sobriety can

       overcome the two years of a lack thereof such that there is a reasonable

       probability that this issue will be remedied.


                                               2. Instability
[21]   Mother has also struggled to maintain stable housing and employment

       throughout the life of the CHINS case. With respect to employment, she

       contends that she had to leave her job to enroll in the inpatient program in Fort

       Wayne. While that may be true, at the time of the factfinding hearing, she had

       been done with that program for months and had not obtained employment.

       With respect to housing, Mother was homeless for most of the CHINS case. At

       the time of the termination hearing, she had just signed a six-month lease for a

       home, but had no way to pay her rent except for her boyfriend’s sporadic

       income. This evidence supports the trial court’s conclusion that there is not a

       reasonable probability that this reason for Child’s removal will be remedied.


                                       3. Domestic Violence
[22]   Mother has also dealt with domestic violence throughout the CHINS case.

       Specifically, since the beginning of the CHINS case, she has been involved in

       physical altercations with Child’s father, her sister, and the police. In

       November 2016, Mother and her boyfriend were both arrested because of a

       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018   Page 13 of 15
       domestic violence incident. DCS referred Mother for domestic violence

       treatment but, at the time of the termination hearing, she had not completed

       that service. She claimed that her therapist told her the treatment was not

       necessary, but there is no other evidence in the record supporting that assertion.

       This evidence supports the trial court’s findings related to domestic violence

       and its conclusion that there is not a reasonable probability that this reason for

       Child’s continued placement outside Mother’s care will be remedied.


[23]   Child has been placed outside of Mother’s care and custody for his whole life—

       over two years at the time of the termination hearing. During those two years,

       Mother never even came close to unsupervised visits with Child, or even to

       developing a bond with him. She has had every opportunity to address the

       underlying issues, and while we applaud the efforts she apparently began to

       make in the weeks leading up to the termination hearing, unfortunately, it was

       too little, too late. Her pattern of behavior throughout the case supports the

       trial court’s conclusion that there is not a reasonable probability that the

       conditions resulting in Child’s initial and continued removal from Mother’s

       care will be remedied.4




       4
         The prong of the statute related to the remedy of the reasons for Child’s removal and the prong of the
       statute related to the continuation of the parent-child relationship posing a threat to Child’s well-being are
       phrased in the disjunctive. I.C. § 31-35-2-4(b)(2)(B). As we have found that the evidence supports the
       former, we need not also consider the latter. We note, however, that the same evidence supporting a
       conclusion that the reasons for Child’s removal are not likely to be remedied would likewise support a
       conclusion that a continuation of the parent-child relationship would pose a threat to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018             Page 14 of 15
                                            B. Best Interests
[24]   With respect to the best interests of Child, there is, of course, all the evidence

       explored above related to Mother’s difficulties with substance abuse, instability,

       and domestic violence. Additionally, we must consider the fact that Child has

       never lived with Mother—solely because of her own failure to address Mother’s

       issues and participate with court-ordered services. And perhaps because of her

       sporadic visitation throughout much of the CHINS case, Child and Mother are

       not bonded. When Mother attended visits, Child became irritable if it was a

       prolonged encounter, and Mother did not have the skill set to soothe Child.

       More than once, she ended a visit early because of her inability to manage the

       toddler’s toddler-like behavior.


[25]   Mother had two years to work on addressing her problems. She did not have to

       have them solved; she merely had to put in enough effort to show that she was

       committed. But not until the end of those two years, after the termination

       petition had been filed, did she begin to take steps to address her issues. And

       even with those steps, she has never completed a substance abuse treatment

       program, she has not found stable employment, and she has not developed a

       bond with Child. Under these circumstances, we find that the evidence

       supports the trial court’s conclusion that termination is in Child’s best interests.


[26]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-JT-1843 | January 17, 2018   Page 15 of 15
