MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Apr 27 2018, 6:23 am
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Dorothy Ferguson                                          Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 27, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of O.B.;                                                  48A02-1709-JT-2306
A.B. (Mother),                                            Appeal from the Madison Circuit
                                                          Court
Appellant,
                                                          The Honorable G. George Pancol,
        v.                                                Judge
                                                          Trial Court Cause No.
The Indiana Department of                                 48C02-1701-JT-3
Child Services,
Appellee.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018        Page 1 of 9
                                             Statement of the Case
[1]   A.B. (“Mother”) appeals the termination of the parent-child relationship with

      her daughter (“O.B.”), claiming that there is insufficient evidence to support the

      termination because the Department of Child Services (“DCS”) failed to prove

      by clear and convincing evidence that the conditions that resulted in O.B.’s

      removal will not be remedied. 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]   O.B. was born in April 2004. In April 2013, O.B.’s aunt and uncle became her

      guardians (“Guardians”). In June 2015, Mother moved to Mississippi and left

      O.B. with Guardians. Mother was using drugs at the time and did not have a

      stable residence. One month later, in July 2015, Guardians took O.B. to a

      relative’s home and explained that they would no longer be able to keep O.B. in

      their home because of her inappropriate behavior. Guardians explained that




      1
          O.B.’s father has never been identified.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018   Page 2 of 9
      O.B. had threatened to kill herself and wished that other people would die. She

      was also refusing to take her insulin as prescribed and was admitted to the

      hospital because of her high blood sugar. After O.B. was discharged from the

      hospital, DCS Family Case Manager Kaneshia Tinker (“FCM Tinker”)

      contacted Mother and informed her that O.B. was no longer living with

      Guardians. When FCM Tinker asked Mother to return to Indiana to begin

      visiting O.B., Mother hung up the telephone.


[4]   That same day, DCS filed a petition alleging that O.B. was a child in need of

      services (“CHINS”). Following a November 2015 fact finding hearing, the trial

      court adjudicated O.B. to be a CHINS. In a December 2015 dispositional

      order, the trial court ordered Mother to: (1) complete a substance abuse

      assessment; (2) submit to random drug screens; (3) obtain stable employment

      and housing; and (4) participate in home-based counseling. The trial court also

      ordered DCS to begin an Interstate Compact on the Placement of Children

      (“ICPC”) so that Mother could be evaluated for services and placements in

      Mississippi.


[5]   DCS completed the ICPC in February 2016. While Mississippi was evaluating

      whether it was going to accept the ICPC, Mother returned to Indiana.2 She

      visited DCS Case Manager Kaylee Jones (“Case Manager Jones”) in August

      2016 and asked for visitation, home based services, and therapy. Mother




      2
       Mississippi denied the ICPC in September 2016. Apparently officials in Mississippi could not find Mother.
      When they went to her home address, a man answered the door and would not let them into the house.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018           Page 3 of 9
      submitted a drug screen, which tested positive for cocaine and alcohol.

      Children’s Bureau Home-Based Case Manager Amy Newton (“Case Manager

      Newton”) attempted to set up referrals for Mother in October 2016, but

      Mother’s telephone was turned off, and DCS had no idea where Mother was

      living at the time. Mother was subsequently “closed out [of the program]

      unsuccessfully.” (Tr. 16).


[6]   After Mother failed to participate in services, DCS filed a petition in January

      2017 to terminate her parental rights. Testimony at the June and August 2017

      fact finding hearings on the termination petition revealed that Case Manager

      Jones had not had any contact with Mother from August 2016 until February

      2017, when Case Manager Jones had been able to reach Mother by telephone

      and notify her about the initial termination hearing. Mother explained that she

      had returned to Mississippi. According to Case Manager Jones, Mother had

      not complied with any of the court-ordered services. Further, Case Manager

      Jones had “no idea” where Mother was living in Mississippi. (Tr. 52).

      According to Case Manager Jones, Mother had previously lived with her sister

      and “been on the road in a semi driving with another man.” (Tr. 53-54). Case

      Manager Jones explained that Mother was “very transient,” which was

      “completely unstable for [O.B.]” (Tr. 53).


[7]   The testimony further revealed that O.B. had had only sporadic contact with

      Mother on Facebook Messenger. O.B.’s therapist, Abbie Rust (“Therapist

      Rust”), testified that O.B. was “typically . . . the one reaching out.” (Tr. 19).

      Therapist Rust explained that “continued contact [was] definitely harmful to . .

      Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018   Page 4 of 9
       . [O.B.]” because O.B. had the expectation that Mother would respond

       appropriately and continuously. However, Mother frequently failed to respond.

       One time, Mother’s friend told O.B. that Mother was “in an unsafe place.” (Tr.

       20). According to Therapist Rust, such information was “harmful to [O.B.,]”

       who had struggled with anxiety, depression, and suicidal thoughts. (Tr. 20).


[8]    At the time of the hearing, O.B. was in foster care in a preadoptive placement.

       She was “maintaining her diabetes” and doing well in school. (Tr. 51). The

       plan for her care was adoption. Case Manager Jones and Court-Appointed

       Special Advocate Becky Douglas (“CASA Douglas”) both testified that

       termination was in O.B.’s best interest.


[9]    Also at the hearing, Mother testified telephonically that she had a house in

       Mississippi but did not have a job. When asked why she was not in Indiana,

       Mother stated, “I got no I.D. I can’t get on the bus. I got nowhere to go if I go

       back to Indiana.” (Tr. 69). Mother admitted that she had not participated in

       any court-ordered services.


[10]   Following the hearing, pursuant to O.B.’s request, the trial court judge

       conducted an in camera interview with O.B. In August 2017, the trial court

       issued a detailed eight-page order that terminated Mother’s parental

       relationship with O.B. Mother appeals.


                                                    Decision
[11]   The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. In re
       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018   Page 5 of 9
       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 48A02-1709-JT-2306 | April 27, 2018   Page 6 of 9
                        (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 the conditions

       that resulted in O.B.’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 O.B.’s well-being.


[15]   However, 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.2d 212, 220 (Ind. Ct. App. 2010), trans. dismissed. We therefore discuss

       only whether there is a reasonable probability that the conditions that resulted

       in O.B.’s removal or the reasons for her placement outside Mother’s home will

       not be remedied.



       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018   Page 7 of 9
[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.3d 636, 642-43 (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. at 643. 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. 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.

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

       trans. denied.     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 O.B. was placed outside the home

       when Guardians could no longer manage her behavior or her diabetes. O.B.

       could not return to Mother’s care because Mother was in Mississippi and

       showed no interest in returning to Indiana to visit or care for O.B. After O.B.

       was adjudicated to be a CHINS, DCS attempted to set up an ICPC so that

       Mother could receive services in Mississippi. However, officials in Mississippi

       could not locate Mother. Although Mother eventually returned to Indiana, she


       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018   Page 8 of 9
       failed to participate in any of the court-ordered services. The one drug screen

       that she submitted tested positive for cocaine and alcohol. At the time of the

       termination hearing, Mother had returned to Mississippi and had no plans to

       return to Indiana. Also at the time of the hearing, O.B. was in foster care in a

       preadoptive placement. She was maintaining her diabetes and doing well in

       school. Both Case Manager Jones and CASA Douglas testified that

       termination was in O.B.’s best interests. This evidence supports the trial court’s

       conclusion that there was a reasonable probability that the conditions that

       resulted O.B.’s removal would not be remedied. We find no error.


[18]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018   Page 9 of 9
