MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Apr 06 2020, 9:50 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
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estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan E. Shipley                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Frances H. Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 6, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of K.G. and X.G.                             19A-JT-2516
(Minor Children)                                          Appeal from the Marion Superior
      and                                                 Court
                                                          The Honorable Marilyn A. Moores,
K.W. (Mother),                                            Judge
Appellant-Respondent,                                     The Honorable Scott B. Stowers,
                                                          Magistrate
        v.
                                                          Trial Court Cause Nos.
                                                          49D09-1902-JT-191
The Indiana Department of                                 49D09-1902-JT-192
Child Services,
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020                    Page 1 of 12
                                             Case Summary
[1]   K.W. (“Mother”) appeals the termination of her parental rights to K.G. and

      X.G. (“Children”), upon the petition of the Marion County Department of

      Child Services (“DCS”). Mother presents a single issue for review: whether

      DCS established, by clear and convincing evidence, the requisite statutory

      elements to support the termination decision. We affirm.



                              Facts and Procedural History
[2]   On October 17, 2017, Children were removed from Mother’s care upon DCS

      allegations that Children were Children in Need of Services (“CHINS”) due to

      a lack of stable housing, parental substance abuse, and domestic violence.

      Children were placed with R.E., the paternal grandmother of Mother’s eldest

      child.1


[3]   On January 31, 2018, Mother admitted that Children were CHINS, due to

      Mother’s need for assistance in providing a home free from substance abuse and

      domestic violence. On February 28, 2018, the CHINS court entered a parental

      participation order. Mother was ordered to undergo a substance abuse

      assessment and treatment, submit to random drug screens, and participate in




      1
        Mother had three children by two different fathers. Children’s father is J.G. He has signed a consent to
      termination of his parental rights and is not an active party to this appeal. Mother’s eldest child was also
      removed from Mother’s care, but she was placed with her father and is not a subject of this termination
      proceeding.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020                      Page 2 of 12
      home-based case management and domestic violence services. At the CHINS

      hearing conducted on October 1, 2018, Mother reported that she had not yet

      engaged in substance abuse services because they were provided on the other

      side of town.


[4]   Mother intermittently visited with Children and had some minimal

      involvement with other services. Over time, Mother was unsuccessfully

      discharged from participation in intensive outpatient substance abuse therapy,

      home-based services, and parenting time sessions. Mother was apparently

      homeless at times, and sometimes lived with friends or a boyfriend. Her

      whereabouts were frequently unknown to DCS, or to her attorney.


[5]   On February 8, 2019, DCS petitioned to terminate Mother’s parental rights to

      Children. A termination hearing, at which Mother did not appear, was

      conducted on August 29, 2019. On September 26, 2019, the trial court issued

      its findings, conclusions thereon, and order terminating Mother’s parental

      rights. She now appeals.



                                 Discussion and Decision
                  Standard of Review – Sufficiency of the Evidence
[6]   When we review whether the termination of parental rights is appropriate, we

      will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d

      1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable

      inferences that are most favorable to the judgment. Id. In so doing, we give


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020   Page 3 of 12
      “due regard” to the trial court’s unique opportunity to judge the credibility of

      the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010) (citing Indiana

      Trial Rule 52(A)). We will set aside the trial court’s judgment only if it is

      clearly erroneous. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229

      (Ind. 2013). In order to determine whether a judgment terminating parental

      rights 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. I.A., 934 N.E.2d at

      1132.


        Requirements for Involuntary Termination of Parental Rights
[7]   “The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children.” In re

      Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

      of a constitutional dimension, the law provides for the termination of those

      rights when the parents are unable or unwilling to meet their parental

      responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143,

      147 (Ind. 2005). The State is required to prove that termination is appropriate

      by a showing of clear and convincing evidence, a higher burden than

      establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.


[8]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

      allege and prove by clear and convincing evidence to terminate a parent-child

      relationship:


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020   Page 4 of 12
              (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.
              (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.


[9]   Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

      therefore the court need only to find that one of the three requirements of

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020   Page 5 of 12
       subsection (b)(2)(B) was established by clear and convincing evidence. See In re

       L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).


                                                    Analysis
[10]   Mother contends that insufficient evidence supports the termination decision.

       She does not challenge the sufficiency of the evidence to establish that Children

       have been removed from the home for the requisite statutory period and there

       exists a satisfactory plan for their care and treatment. However, she contends

       that the DCS failed to present clear and convincing evidence of a reasonable

       probability that she would fail to remedy the conditions that led to Children’s

       removal, that continuation of the parental relationship poses a threat to

       Children, and termination is in Children’s best interests.


[11]   As for determining the sufficiency of the evidence regarding remediation of

       conditions, this invokes a “two-step analysis.” In re E.M., 4 N.E.3d 636, 643

       (Ind. 2014). First, we identify the conditions that led to removal; and second,

       we must determine whether there is a reasonable probability that those

       conditions will not be remedied. Id. In the second step, the trial court must

       judge parental fitness as of the time of the termination hearing, taking into

       consideration the evidence of changed conditions. Id. (citing Bester, 839 N.E.2d

       at 152). The trial court is entrusted with balancing a parent’s recent

       improvements against habitual patterns of conduct. Id. The trial court has

       discretion to weigh a parent’s prior history more heavily than efforts made only

       shortly before termination. Id. “Requiring trial courts to give due regard to


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020   Page 6 of 12
       changed conditions does not preclude them from finding that parents’ past

       behavior is the best predictor of their future behavior.” Id.


[12]   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), trans. denied. The trial court may also consider the

       services offered to the parent by DCS and the parent’s response to those services

       as evidence of whether conditions will be remedied. In re B.D.J., 728 N.E.2d

       195, 201 (Ind. Ct. App.2000).


[13]   Children were removed from Mother’s care due to the lack of stable housing,

       substance abuse, and domestic violence. With the objective of assisting Mother

       in remedying those conditions, DCS made referrals so that Mother could work

       with a home-based counselor on housing and employment, undergo substance

       abuse and domestic violence assessments with a licensed mental health

       counselor, and participate in intensive outpatient therapy for substance abuse.

       Mother was historically non-compliant with those services.


[14]   Tamara Bowden (“Bowden”) testified that she had been retained to provide

       home-based services to Mother. Bowden completed an intake interview with

       Mother in May of 2019. She interviewed Mother on the porch of a friend’s

       house because Mother did not have independent housing. Mother reported

       having some work assisting a friend with installing windows. Bowden

       anticipated meeting with Mother weekly with goals of achieving housing and


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020   Page 7 of 12
       stable employment. However, according to Bowden, there were “cancellations

       [by Mother] all of the time” and Bowden discharged Mother from the program

       without having any follow-up session to the intake. (Tr. Vol. II, pg. 66.)


[15]   Megan McCully (“McCully”), a licensed mental health counselor, testified that

       she had completed an assessment of Mother’s needs with regard to substance

       abuse treatment and domestic violence counseling.2 She referred Mother to

       group sessions of intensive outpatient therapy for substance abuse, with

       domestic violence counseling to begin after the completion of the substance

       abuse therapy. McCully testified that Mother attended two group sessions. At

       one session, Mother provided a drug screen sample and, based upon that

       screen, McCully recommended in-patient substance abuse treatment for

       Mother. However, Mother never returned to the group sessions; thus, she did

       not receive in-patient therapy, nor did she progress to domestic violence

       counseling. Mother was unsuccessfully discharged from the sixteen-week

       program.


[16]   Daionah Jordan (“Jordan”) testified that she supervised visits between Mother

       and Children. Jordan provided transportation to different public locations

       because Mother did not have her own residence. Jordan testified that Mother

       was inconsistent with visits, reporting to Jordan that her phone did not work,

       but ultimately admitting that her addiction interfered with following through




       2
        Reportedly, Mother had been the victim of domestic violence; J.G. had choked Mother and she bit him to
       make him let go of her.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020                Page 8 of 12
       with visits. Although Mother and Children appeared to have a bond, and visits

       were pleasant, the visits were decreased from twice weekly to once weekly.

       This action was taken because missed visits caused sadness to Children, Mother

       “wasn’t confirming for weeks at a time,” and the visits were “like a

       rollercoaster.” Id. at 59. Eventually, Mother was unsuccessfully discharged

       from the parenting time program.


[17]   Family case manager Tiffany Watson (“Watson”) testified that Mother had not

       maintained contact with DCS; accordingly, Watson lacked knowledge of

       whether Mother had either employment or housing. Mother had last exercised

       parenting time and last participated in drug screening sometime in 2018.

       Mother had appeared at some CHINS proceedings, without reporting housing

       or employment. Mother also attended a team meeting in June of 2018, but she

       had walked out before the meeting concluded. Watson characterized Mother

       as a “non-compliant” DCS client. Id. at 11.


[18]   Based upon this evidence, the court concluded that none of the conditions

       leading to Children’s removal were likely to be remedied. Mother argues that

       this conclusion is not well-founded because the reported incident of domestic

       violence is remote and Watson, as case manager, provided little or no evidence

       of Mother’s current circumstances. The contention that any domestic violence

       is remote and unlikely to reoccur is, at bottom, a request to reweigh the

       evidence. Moreover, Mother’s argument ignores the testimony that little was

       known about her current situation simply because Mother failed to maintain

       contact with DCS, her attorney, or any service provider. She failed to provide

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020   Page 9 of 12
       regular or recent drug screens. See In re A.B., 924 N.E.2d 666, 671 (Ind. Ct.

       App. 2010) (recognizing that a parent may not make herself unavailable for

       services such as drug screening and then claim a lack of evidence of current

       circumstances). There is sufficient evidence that conditions leading to

       Children’s removal will not likely be remedied.


[19]   The court also concluded that continuation of the parent-child relationships

       would pose a threat to Children because it presented a barrier to the plan of

       adoption. Because the controlling statute is written in the disjunctive, we need

       not address whether there is sufficient evidentiary support for this conclusion.

       In re L.S., 717 N.E.2d at 209.3


[20]   Mother also contends that DCS failed to present clear and convincing evidence

       that termination is in Children’s best interests. In determining what is in a

       child’s best interests, the court must look to the totality of the evidence. In re

       A.D.S., 987 N.E.2d at 1158. Mother failed to avail herself of the opportunities

       afforded to her; the service providers uniformly testified that Mother was

       inconsistent and non-compliant. Critically, she failed to address her use of

       methamphetamines. On the other hand, family case manager Watson and

       foster parent R.E. testified that Children were doing very well in their pre-

       adoptive placement. The Court Appointed Special Advocate, who had visited




       3
         However, we acknowledge that parental rights may not be terminated solely because the court concludes
       there is a better home for a child than the parental home. See In re V.A., 51 N.E.3d at 1151.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020                Page 10 of 12
       with Children on eleven occasions over an eighteen-month period of time,

       recommended termination of Mother’s parental rights.


[21]   Mother argues that Children should be left longer in R.E.’s care without

       termination of rights, as R.E. is the paternal grandmother of Mother’s oldest

       child and may be willing to continue her role as a foster parent as opposed to

       adoptive parent. In support of her contention, Mother directs our attention to

       In re R.S., 56 N.E.3d 625 (Ind. 2016), where the Indiana Supreme Court

       reversed a termination of parental rights after concluding that the State had

       failed to prove that termination was in R.S.’s best interests. The Court

       observed, “when a child is in relative placement, and the permanency plan is

       adoption into the home where the child has lived for years already, prolonging

       the adoption is unlikely to have an effect upon the child.” Id. at 630. The

       Court also indicated that R.S.’s father had “repeatedly expressed his desire and

       willingness to continue to develop as a person and a parent for R.S.” Id. The

       facts of this case are readily distinguishable from the facts of R.S. By all

       indications, Mother has been unable or unwilling to develop her skills as a

       parent. There is ample evidence to support the trial court’s conclusion that

       termination of Mother’s parental rights is in Children’s best interests.



                                                Conclusion
[22]   DCS presented sufficient evidence to support the termination decision.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020   Page 11 of 12
[23]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2516 | April 6, 2020   Page 12 of 12
