MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    Jan 31 2020, 8:53 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
Daniel G. Foote                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General

                                                          Catherine Brizzi
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          January 31, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of A.L. and J.R.                             19A-JT-1781
(Minor Children)                                          Appeal from the Marion Superior
and                                                       Court
                                                          The Honorable Marilyn A.
J.L. (Mother),                                            Moores, Judge
Appellant-Respondent,                                     The Honorable Scott Stowers,
                                                          Magistrate
        v.
                                                          Trial Court Cause No.
                                                          49D09-1808-JT-953, - 954
Indiana Department of Child
Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020                     Page 1 of 14
      Crone, Judge.


                                              Case Summary
[1]   J.L. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental rights to her minor children A.L. and J.L. (collectively “the

      Children”). We affirm.


                                  Facts and Procedural History
[2]   Mother is the biological mother of ten-year-old A.L and five-year-old J.R. 1 In

      August 2017, the Marion County Department of Child Services (“DCS”) filed a

      child in need of services (“CHINS”) petition regarding both Children alleging

      that Mother failed to provide the Children with a home free from violence and

      substance abuse. Following an initial hearing, the Children were removed from

      Mother’s care. 2 The Children were adjudicated CHINS on December 1, 2017,

      after Mother admitted to the allegations in the CHINS petition. A dispositional

      hearing was held that same day, and the trial court ordered Mother to: (1)

      participate in home-based case management; (2) complete a substance abuse

      assessment; (3) submit to random drug and alcohol screens; and (4) ensure that

      the Children were participating in age-appropriate therapy. The permanency

      plan for the Children was reunification.



      1
       A.L. and J.R. have different biological fathers, both of whom signed consents to adoption and were
      dismissed from the termination action.
      2
       The Children were placed together in relative/kinship care in October 2017. (The placement was
      considered relative care for J.R. and kinship care for A.L.)



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020               Page 2 of 14
[3]   As part of home-based case management, Mother was referred for seventy

      parenting time sessions. She missed at least thirty-one of those sessions,

      admitting to service providers that she missed those sessions due to her

      methamphetamine addiction. Whenever Mother missed sessions, J.R. would

      become angry and scream and cry. Mother’s behavior made A.L. feel

      unwanted. During some of the sessions that Mother did attend, she would

      engage in inappropriate conversations with the Children. Mother continued to

      be inconsistent with her attendance and, after she missed three consecutive

      sessions, her parenting time referral was closed unsuccessfully in April 2018.


[4]   Regarding substance abuse, home-based case manager Sara Franklin set one of

      Mother’s goals as obtaining sobriety. Mother confirmed to Franklin that

      methamphetamine was her “drug of choice.” Tr. Vol. 2 at 131. Franklin

      accompanied Mother to the Salvation Army substance abuse treatment

      program and stayed with Mother as long as she could. However, later that

      same day, Mother sent a text message to Franklin indicating that she would not

      participate in the Salvation Army treatment program. Mother further failed to

      participate in other offered treatment programs and, other than expressing a

      desire to obtain sobriety, she made no progress toward that goal. Although

      Mother was scheduled to submit to three drug screens per week, she submitted

      fewer than twenty drug screens during the pendency of this case and has not

      submitted any screens since January 2018.


[5]   A.L. reported that she did not feel safe when residing with Mother and that she

      had observed Mother and J.R.’s father using drugs. J.R. began receiving

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 3 of 14
      therapy in March 2018. J.R. was diagnosed with post-traumatic stress disorder

      and attention deficit hyperactivity disorder. The therapist believes that J.R.’s

      trauma was caused by witnessing domestic violence and substance abuse in the

      home, as well as being removed from the home. J.R. is at a high risk for

      suicide, depression, and drug abuse. J.R. has made substantial progress since

      being removed from Mother’s care and placed in a structured and stable

      environment.


[6]   At some point, after being unsuccessfully discharged from several services,

      Mother completely stopped communicating with the DCS family case manager.

      In March 2018, Mother was charged with level 6 felony unlawful possession of

      a syringe, level 6 felony possession of a counterfeit instrument, and class C

      misdemeanor possession of paraphernalia. In August 2018, the trial court held

      a permanency hearing and, after hearing evidence regarding Mother’s failure to

      participate in services, the court entered an order changing the Children’s

      permanency plan from reunification to adoption. At the time of that hearing,

      Mother’s whereabouts were unknown.


[7]   On August 12, 2018, DCS filed a petition to terminate Mother’s parental rights.

      The termination factfinding hearing took place over three days in February,

      May, and June 2019. Mother appeared on only one of those dates. On July 8,




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 4 of 14
2019, the court entered its order terminating Mother’s parental rights. The trial

court entered extensive findings of fact and concluded in relevant part that: 3


           51. There is a reasonable probability that the conditions that
           resulted in the [C]hildren’s removal and continued placement
           outside the home will not be remedied by their mother. Mother
           has had over a year and a half to put forth an effort and has not
           done so. The [family case manager] has referred all court ordered
           services and Mother has completed none. Stability and sobriety
           remain major concerns.

           52. Continuation of the parent-child relationship poses a threat
           to the [C]hildren’s well-being in that it would serve as a barrier
           for them obtaining permanency through adoption when their
           mother is unable and unwilling to put forth an effort and parent.
           The [C]hildren would be traumatized if the [parent]-child
           relationship would continue. Both are happy in their current
           placement and both feel safe.

           53. Termination of the parent[-]child relationship is in the best
           interests of the [C]hildren. Termination would allow them to be
           adopted into a stable and permanent home where their needs will
           be safely met.

           54. There exists a satisfactory plan for the future care and
           treatment of the [C]hildren, that being adoption.

           55. The Guardian ad Litem agrees with the permanency plan of
           adoption being in the [C]hildren’s best interests.




3
    We have replaced any references to the parties’ names with the aforementioned designations.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020                  Page 5 of 14
      Appealed Order at 3. Accordingly, the trial court determined that DCS had

      proven the allegations of the petition to terminate by clear and convincing

      evidence and therefore terminated Mother’s parental rights. Mother now

      appeals.


                                     Discussion and Decision
[8]   “The purpose of terminating parental rights is not to punish the parents but,

      instead, to protect their children. Thus, although parental rights are of a

      constitutional dimension, the law provides for the termination of these rights

      when the parents are unable or unwilling to meet their parental

      responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

      omitted). “[T]ermination is intended as a last resort, available only when all

      other reasonable efforts have failed.” Id. A petition for the involuntary

      termination of parental rights must allege in pertinent part:


          (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
      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 6 of 14
          (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 that termination is appropriate by

      a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144

      (Ind. 2016). If the trial court finds that the allegations in a petition are true, the

      court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


[9]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
              of fact and conclusions thereon, we apply a two-tiered standard
              of review: we first determine whether the evidence supports the
              findings and then determine whether the findings support the
              judgment. In deference to the trial court’s unique position to
              assess the evidence, we will set aside a judgment terminating a
              parent-child relationship only if it is clearly erroneous.


      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

      do not support the trial court’s conclusions or the conclusions do not support

      the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 7 of 14
           Section 1 – Clear and convincing evidence supports the trial
            court’s conclusion that there is reasonable probability of
                              unchanged conditions.
[10]   Mother challenges the trial court’s conclusion that there is a reasonable

       probability that the conditions that resulted in the Children’s removal from and

       continued placement outside the home will not be remedied.4 In determining

       whether there is a reasonable probability that the conditions that led to the

       Children’s removal and continued placement outside the home will not be

       remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

       989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions

       led to their placement and retention in foster care.” Id. Second, “we

       ‘determine whether there is a reasonable probability that those conditions will

       not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010).

       In the second step, the trial court must judge a parent’s fitness at the time of the

       termination proceeding, taking into consideration evidence of changed

       conditions, and balancing a parent’s recent improvements against “habitual

       pattern[s] of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)

       (quoting K.T.K., 989 N.E.2d at 1231). “A pattern of unwillingness to deal with



       4
        Mother also challenges the trial court’s conclusion that there is a reasonable probability that the
       continuation of the parent-child relationship poses a threat to Children’s well-being. However, Indiana Code
       Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination of
       parental rights, the trial court need only find that one of the three requirements of that subsection has been
       established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
       Ct. App. 2013), trans. denied. Accordingly, we will address only one of the three requirements.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020                   Page 8 of 14
       parenting problems and to cooperate with those providing social services, in

       conjunction with unchanged conditions, support a finding that there exists no

       reasonable probability that the conditions will change.” Lang v. Starke Cty. Office

       of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (citation

       omitted), trans. denied. The evidence presented by DCS “need not rule out all

       possibilities of change; rather, DCS need establish only that there is a

       reasonable probability that the parent’s behavior will not change.” In re Kay L.,

       867 N.E.2d 236, 242 (Ind. Ct. App. 2007).


[11]   Here, the Children were removed from Mother’s care following her admission

       that they were CHINS. Specifically, the CHINS petition alleged that, among

       other things, Mother had failed to provide the Children with a home free from

       violence and illegal substance abuse, that Mother had continually tested

       positive for illegal drugs, and that Mother had failed to adequately address her

       substance abuse issues. Mother admitted that the coercive intervention of the

       court was necessary and that she needed the assistance of DCS to address her

       substance abuse issues. In its dispositional decree, the trial court ordered

       Mother to participate in home-based case management, complete a substance

       abuse assessment, submit to random drug and alcohol screens, and ensure that

       the Children were participating in age-appropriate therapy. The evidence

       indicates that Mother failed to comply with the trial court’s order in that she has

       not completed any of the court-ordered services.


[12]   First, as part of home-based case management, Mother was scheduled to have

       seventy parenting time sessions with the Children. However, she missed at

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 9 of 14
       least thirty-one sessions. Mother admitted to service providers that she often

       missed the sessions due to her methamphetamine addiction. After three

       consecutive missed parenting time sessions, that referral was closed

       unsuccessfully, and Mother has not seen the Children since October 2018.


[13]   As for Mother’s substance abuse, the evidence indicates that DCS attempted to

       help Mother achieve sobriety through enrollment in a substance abuse

       treatment program. However, Mother left that program the same day she

       entered. Indeed, throughout the pendency of this case, Mother exhibited

       resistance to receiving any treatment whatsoever for her substance abuse.

       Further, Mother failed to comply with court-ordered drug screen requirements

       and, rather than submitting the required three drug screens per week, she

       submitted only twenty screens total over a two-year period. By all accounts,

       Mother has done nothing to address her admitted addiction issue in order to

       provide her Children with a safe and stable environment.


[14]   Mother suggests that there is no evidence that her substance abuse is ongoing,

       and further that there is no evidence that she ever used drugs in front of the

       Children or that her substance abuse negatively affected the Children. First, a

       parent whose drug use led to a child’s removal cannot be permitted to refuse to

       submit to drug testing, then later claim the DCS has failed to prove that the

       drug use has continued. In re A.B., 924 N.E.2d 666, 671 (Ind. Ct. App. 2010).

       Moreover, A.L. testified that she witnessed Mother using drugs and that she

       had been asked to “pass a joint around” to Mother’s friends. Tr. Vol. 2 at 72.

       Mother also asked A.L. to lie to DCS about her drug use, and A.L. reported

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 10 of 14
       that she felt safer after Mother’s parenting time was suspended. Contrary to

       Mother’s suggestion, DCS presented ample evidence that Mother’s substance

       abuse is ongoing and further that such abuse negatively affected the Children.


[15]   The record supports the trial court’s determination that there is a substantial

       probability of future neglect or deprivation based upon Mother’s failure to

       participate in services and her habitual pattern of behavior. The trial court’s

       conclusion that there is a reasonable probability that the conditions that led to

       the Children’s removal and continued placement outside the home will not be

       remedied is supported by clear and convincing evidence.


         Section 2 – Clear and convincing evidence supports the trial
          court’s conclusion that termination of Mother’s parental
                   rights is in the Children’s best interests.
[16]   Mother also challenges the trial court’s conclusion that termination of her

       parental rights is in the Children’s best interests. In considering whether

       termination of parental rights is in the best interests of a child, the trial court is

       required to look beyond the factors identified by DCS and look to the totality of

       the evidence. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185,

       203 (Ind. Ct. App. 2003). In doing so, the trial court must subordinate the

       interests of the parent to those of the child involved. Id. The trial court need not

       wait until the child is irreversibly harmed before terminating parental rights. Id.

       “[T]he historic inability to provide adequate housing, stability, and supervision,

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

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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 11 of 14
       interests.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). The testimony

       of service providers may support a finding that termination is in the child’s best

       interests. McBride, 798 N.E.2d at 203.


[17]   Here, home-based case worker Sara Franklin testified that, due to Mother’s

       failure to cooperate with offered services, Mother had made no progress in

       reaching the set goals of achieving sobriety or obtaining employment and

       housing. Franklin emphasized Mother’s continued substance abuse and how it

       severely and negatively affected Mother’s ability to provide adequate care and

       supervision of the Children. Franklin stated that she felt that termination of

       Mother’s parental rights was in the Children’s best interests because Mother

       had not remedied any of the reasons for the Children’s removal, and that a

       continuing relationship would be a threat to the Children’s well-being.


[18]   DCS family case manager Britney Richardson testified regarding Mother’s

       noncompliance with ordered services, including parenting time, which was

       extremely hard on the Children. Richardson stated that in addition to Mother’s

       strained relationship with the Children, she had made no progress in dealing

       with her substance abuse issues and that such failure made it impossible to

       provide the Children with stability. Richardson opined that termination of

       Mother’s parental rights was in the Children’s best interests and noted that

       “these [C]hildren have been through so much … they are now in a place where

       they are [] happy, they feel safe … they’re able to just be kids ….” Tr. Vol. 2 at

       159.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 12 of 14
[19]   Similarly, guardian ad litem Christa Rodarte opined that termination of

       Mother’s parental rights is in the Children’s best interests. Rodarte noted that

       none of Mother’s parenting “issues have been remedied” due to her failure to

       participate in services and to address her substance abuse. Id. at 185. Indeed,

       “no [service] providers” were “recommending that the [C]hildren be placed

       back in [Mother’s] care.” Id. Rodarte observed that DCS had been involved

       with the Children for almost two years and stated that it is not fair to leave the

       Children “in limbo” and that they instead “need some kind of permanent

       option” because “they have the right to be in one spot and know that they’re

       going to be able to stay there.” Id.


[20]   As our supreme court has often stated, “[c]hildren have an interest in

       terminating parental rights that prevent adoption and inhibit establishing

       secure, stable, long-term, continuous relationships.” K.T.K., 989 N.E.2d at

       1230 (quoting In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). Clear and

       convincing evidence supports the trial court’s conclusion that termination of

       Mother’s rights is in the Children’s best interests.


        Section 3 – Clear and convincing evidence supports the trial
        court’s conclusion that adoption is a satisfactory plan for the
                     care and treatment of the Children.
[21]   Finally, Mother challenges the trial court’s conclusion that there is a

       satisfactory plan for the care and treatment of the Children. While the trial

       court must find that there is a satisfactory plan for the care and treatment of the

       child, “[t]his plan need not be detailed, so long as it offers a general sense of the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 13 of 14
       direction in which the child will be going after the parent-child relationship is

       terminated.” In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008).

       Generally, adoption is a satisfactory plan. Id.


[22]   It is clear from the trial court’s findings that the permanency plan here is for the

       Children to be adopted by their current relative/kinship care placement. The

       service providers were all in agreement that the Children had progressed and

       are thriving in that placement. Thus, there is clearly a general sense of direction

       in which the Children will be going after the parent-child relationship is

       terminated. Clear and convincing evidence supports the trial court’s conclusion

       that adoption is a satisfactory plan for the care and treatment of the Children.


[23]   Decisions to terminate parental rights “are among the most difficult our trial

       courts are called upon to make” and are very fact-sensitive. E.M., 4 N.E.3d at

       640. We will 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. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997).

       Based on the record before us, we cannot say that the trial court’s termination

       of Mother’s parental rights to the Children was clearly erroneous. Accordingly,

       the trial court’s termination order is affirmed.


[24]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 14 of 14
