MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                   Feb 04 2020, 9:23 am

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


ATTORNEY FOR APPELLANT M.S.                               ATTORNEYS FOR APPELLEE
Renee M. Ortega                                           Curtis T. Hill, Jr.
Lake County Juvenile Public Defender’s                    Attorney General of Indiana
Office
Crown Point, Indiana                                      Catherine E. Brizzi
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
ATTORNEY FOR APPELLANT T.P.
Joann M. Price Franklin
Merrillville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 4, 2020
of the Parent–Child Relationship                          Court of Appeals Case No.
of V.P. (Minor Child)                                     19A-JT-2018
                                                          Appeal from the Lake Superior
and                                                       Court
                                                          The Honorable Thomas P.
M.S. (Mother) and T.P. (Alleged                           Stefaniak, Jr., Judge
Father),                                                  Trial Court Cause No.
Appellants-Respondents,                                   45D06-1905-JT-132

        v.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020                     Page 1 of 12
      Indiana Department of Child
      Services,
      Appellee-Petitioner.




      Bradford, Chief Judge.



                                           Case Summary
[1]   M.S. (“Mother”) and T.P. (“Father”) (collectively, “Parents”) are the biological

      parents of V.P. (“Child”). Both Mother and Child tested positive for cocaine at

      Child’s birth. The Department of Child Services (“DCS”) took custody of

      Child after Parents abandoned Child at the hospital. Child was subsequently

      found to be a child in need of services (“CHINS”). Following the CHINS

      determination, Parents completed some initial assessments but did not complete

      recommended services. Given Parents’ failure to complete services, DCS

      eventually petitioned to terminate their parental rights to Child. Following an

      evidentiary hearing, the juvenile court granted DCS’s petition to terminate

      Parents’ parental rights. On appeal, Parents contend that DCS failed to present




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020   Page 2 of 12
      sufficient evidence to support the termination of their parental rights. 1 We

      affirm.



                              Facts and Procedural History
[2]   Child was born on February 25, 2018. At the time of Child’s birth, both

      Mother and Child tested positive for cocaine. Child remained at the hospital

      following his birth. Parents abandoned Child at the hospital, failing to visit

      Child or pick Child up from the hospital upon his discharge. Child was placed

      in a foster home upon his discharge from the hospital. He has since remained

      in this placement.


[3]   DCS filed a CHINS petition on March 6, 2018, in which it alleged Child was a

      CHINS due to concerns of substance abuse and neglect by Parents. DCS

      further stated that


               Due to there being no caregiver for the child, the Mother’s
               admission of using cocaine while pregnant with the child, and
               the family’s recent and previous history with DCS for substance
               abuse issues and neglect, DCS took custody of the child and
               placed the child in foster care after he was released from the
               hospital.




      1
        At the outset, we note that the brief filed by Father on appeal is entitled “Father’s Memorandum of Law in
      Support of Mother’s Appeal.” Despite the title of this filing, the record reveals that Father filed a notice of
      appeal and presented arguments that both challenged the termination of his parental rights to Child and
      supported Mother’s appeal. As such, we will treat Father’s brief as both an appeal of the order terminating
      his parental rights to Child and additional argument in support of Mother’s appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020                   Page 3 of 12
Ex. p. 16. In its April 13, 2018 predispositional report, DCS indicated that

“[t]here continues to be resistance from the parents in regards to services as well

as visiting their child.” Ex. p. 35. On July 19, 2018, the juvenile court issued

an order on factfinding and dispositional decree in which it found Child to be a

CHINS, ordered that Child remain in his foster placement, and incorporated

DCS’s recommendations relating to services. These services included:


        [Parents] are to have supervised visits with [Child].

        [Father] is to have a substance abuse assessment and follow
        through with the recommendations.

        [Father] should work with the Fatherhood Initiative program to
        establish paternity.

        [Parents] are to participate in random drug screens.

        [Mother] should continue with her services through her open
        CHINS case, which include the following: [Mother] is to
        participate in individual therapy, domestic violence education
        and therapy, Intensive Outpatient Substance Abuse services
        (IOT), parent education, and follow through with the
        recommendations from her psychological assessment.

        [Father] is to have a parenting assessment and follow through
        with all recommendations.

        [Father] is to participate in recommendations from his initial
        clinical assessment, which include the following: individual
        therapy, home-based casework services, psychological
        assessment, and a deferred recommendation that once [Mother]
        completes her DV classes, the couple should participate in
        couple’s counseling or co-parenting to address healthy
        boundaries, communication, and trust.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020   Page 4 of 12
      Ex. p. 36.


[4]   Parents completed some of the assessments ordered by the juvenile court but

      did not consistently participate in services, and Mother continued to test

      positive for drugs. Parents last visited with Child in July of 2018. Parents

      ultimately failed to make “any progress towards reunification” with Child. Tr.

      p. 13.


[5]   On May 9, 2019, DCS filed a petition to terminate Parents’ parental rights. The

      juvenile court conducted an evidentiary hearing on July 24, 2019. Neither

      Mother nor Father appeared for the evidentiary hearing. Following conclusion

      of the evidence, the juvenile court took the matter under advisement. On July

      30, 2019, the juvenile court issued an order terminating Parents’ parental rights

      to Child.



                                 Discussion and Decision
[6]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Although

      parental rights are of a constitutional dimension, the law allows for the

      termination of those rights when parents are unable or unwilling to meet their

      parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),

      trans. denied. Parental rights, therefore, are not absolute and must be

      subordinated to the best interests of the children. Id. Termination of parental


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020   Page 5 of 12
      rights is proper where the children’s emotional and physical development is

      threatened. Id. The juvenile court need not wait until the children are

      irreversibly harmed such that their physical, mental, and social development is

      permanently impaired before terminating the parent–child relationship. Id.


[7]   Parents contend that the evidence is insufficient to sustain the termination of

      their parental rights to Child. In reviewing termination proceedings on appeal,

      this court will not reweigh the evidence or assess the credibility of the witnesses.

      In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879

      (Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile

      court’s decision and reasonable inferences drawn therefrom. Id. Where, as

      here, the juvenile court includes findings of fact and conclusions thereon in its

      order terminating parental rights, our standard of review is two-tiered. Id.

      First, we must determine whether the evidence supports the findings, and,

      second, whether the findings support the legal conclusions. Id.


[8]   In deference to the juvenile court’s unique position to assess the evidence, we

      set aside the juvenile court’s findings and judgment terminating a parent–child

      relationship only if they are clearly erroneous. Id. A finding of fact is clearly

      erroneous when there are no facts or inferences drawn therefrom to support it.

      Id. A judgment is clearly erroneous only if the legal conclusions made by the

      juvenile court are not supported by its findings of fact, or the conclusions do not

      support the judgment. Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020   Page 6 of 12
[9]    Parents claim that DCS failed to present sufficient evidence to prove by clear

       and convincing evidence:


               (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.


       Ind. Code § 31-35-2-4(b)(2).


                    I. Indiana Code Section 31-35-2-4(b)(2)(B)
[10]   It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

       in the disjunctive, the juvenile court need only find that one of the conditions

       listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.

       2003), trans. denied. Therefore, where the juvenile court determines that one of

       the above-mentioned factors has been proven and there is sufficient evidence in

       the record supporting the juvenile court’s determination, it is not necessary for

       DCS to prove, or for the juvenile court to find, either of the other factors listed

       in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020   Page 7 of 12
[11]   DCS does not allege that Child has been adjudicated CHINS on two separate

       occasions. As such, DCS had to prove either that (1) the conditions resulting in

       removal from or continued placement outside Parents’ home will not be

       remedied or (2) the continuation of the parent-child relationship poses a threat

       to Child.


[12]   The juvenile court determined that the evidence established a reasonable

       probability that the conditions that resulted in Child’s removal and continued

       placement outside Parents’ care would not be remedied, finding as follows:


               There is a reasonable probability that the conditions resulting in
               the removal of the child from his parents’ home will not be
               remedied in that: The child became a ward of [DCS] at birth due
               to the drug usage of mother and the child testing positive for
               drugs at birth. The child remained in the hospital and the parents
               did not return for the child. The child was abandoned at the
               hospital by the parents. The child was removed from parental
               care on an emergency basis due to the allegations of abuse
               and/or neglect. Parents have a history with [DCS] for their two
               other children were wards of [DCS].

               Parents were offered services pursuant to a case plan which
               included substance abuse assessments, parenting assessment,
               home based casework services, initial clinical assessments,
               medication evaluation, random drug and alcohol screens,
               domestic violence therapy, individual therapy, and supervised
               visitations.

               Mother and father have a history of domestic violence issues.

               Mother participated in the assessments, but did not participate in
               the recommended services in the case plan for reunification
               pursuant to this child’s case or the sibling’s matters. Mother was

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020   Page 8 of 12
        sporadic with visiting the child. Mother has not seen this child
        since July 2018. Mother has not completed the case plan for
        reunification and has not shown any interest in parenting this
        child. Mother does not have any significant bond with the child
        due to her lack of contact with the child. Mother continues to
        test positive on her drug screens.

        Father only participated in a portion of the services offered by the
        [DCS]. Father was sporadic with the visitations with the child.
        Father has not visited the child since July of 2018. [Father]
        throughout the life of the case had a lot of erratic behaviors and
        has indicated on numerous occasions that he was not going to
        participate in the case plan. Father has shown no interest in
        parenting this child. Father does not have any significant bond
        with this child. Father also has substance abuse issues to which
        he is not receiving any treatment.

        Neither mother nor father attended the fact[-]finding hearing on
        the petition to terminate their parental rights.

        The permanency plan was changed to adoption on March 22,
        2019.

        Neither parent is providing any emotional or financial support
        for the child. Neither parent has completed any case plan for
        reunification. Neither parent is in a position to properly parent
        this child. The child has been in placement since birth and is
        bonded and thriving. This child has never been in parental care
        or custody.

        The child remains outside of the parents’ care. The original
        allegations of neglect have not been remedied by the parents.
        Neither of these parents have demonstrated an ability to
        independently parent the child and provide the necessary care,
        support and supervision. There is no basis for assuming the
        parents will complete the necessary services and find one or both
        of themselves in a position to receive the child into the home.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020   Page 9 of 12
               The parents failed to utilize the available services and make the
               necessary efforts to remedy the conditions, which led to
               intervention by DCS and the Court.


       Appellant’s App. pp. 30–31. Neither Mother nor Father challenge these

       findings on appeal. As such, we accept the findings as true. See In re S.S., 120

       N.E.3d 605, 610 (Ind. Ct. App. 2019). We agree with the juvenile court’s

       determination that these findings demonstrate a reasonable probability that the

       conditions resulting in Child’s removal from Parents’ care will not be remedied.


[13]   In challenging the sufficiency of the evidence to sustain the termination of their

       parental rights to Child, Parents acknowledge that they have not completed

       services but claim that DCS failed to prove that they are unable to provide a

       stable home for Child. Specifically, they argue that they have housing, Father

       receives social security benefits, and Mother is looking for employment. They

       also claim that, while they currently have no bond with Child, DCS failed to

       prove that they would be unable to establish a bond with Child in the future, if

       Child were to ever be placed in their care. Parents’ claims amount to an

       invitation for this court to reweigh the evidence, which we will not do. See In re

       S.P.H., 806 N.E.2d at 879.


                   II. Indiana Code Section 31-35-2-4(B)(2)(C)
[14]   We are mindful that in considering whether termination of parental rights is in

       the best interests of a child, the juvenile 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.
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020   Page 10 of 12
       2003). In doing so, the juvenile court must subordinate the interests of the

       parents to those of the children involved. Id. “A parent’s historical inability to

       provide a suitable environment along with the parent’s current inability to do

       the same supports a finding that termination of parental rights is in the best

       interests of the children.” Lang v. Starke Cty. Office of Family & Children, 861

       N.E.2d 366, 373 (Ind. Ct. App. 2007). Furthermore, this court has previously

       determined that the testimony of the case worker, guardian ad litem (“GAL”),

       or a CASA regarding a child’s need for permanency supports a finding that

       termination is in the child’s best interests. Id. at 374; see also Matter of M.B., 666

       N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.


[15]   With respect to the best interests of Child, the juvenile court found as follows:


               The child continues to reside in a stable foster home which has
               indicated both a willingness and ability to adopt the child. It
               would be unfair to the child to delay such permanency on the
               very remote likelihood of parents committing to and completing
               services.

               The Indiana Supreme Court has held that at some point in time a
               child’s right to permanency outweighs a parents ever important
               right to parent. The Court finds that in this case, [Child]
               certainly has a right to permanency.

                                                       ****

               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.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020   Page 11 of 12
       Appellant’s App. Vol. II p. 31. The juvenile court’s findings are supported by

       the record.


[16]   While both parents completed at least some of the initial court-ordered

       assessments, neither completed the necessary services or made any progress

       towards reunification. DCS had continued concerns of substance abuse by and

       domestic abuse between Parents. In addition, FCM Passmore testified that she

       believed that termination of Parents’ parental rights was in Child’s best

       interests, explaining:


               [Child] needs consistency. He needs treatment and care. He’s
               seventeen months old, he needs his basic needs met of food,
               clothing, shelter, education and medical. [Child] does participate
               in First Step Services. He receives physical therapy as well as
               speech. And he needs a home that is free from domestic violence
               as well as substance abuse.

                                                       ****

               [Child] needs a permanent, loving home. He’s been in the home
               for seventeen months. He appears very bonded with the foster
               parents. There’s never been any safety concerns in regards to
               care and treatment and he’s thriving.


       Tr. pp. 16–17. FCM Passmore’s testimony coupled with Parents’ failure to

       make any progress toward reunification is sufficient to sustain the juvenile

       court’s findings regarding Child’s best interests.


[17]   The judgment of the juvenile court is affirmed.


       Altice, J., and Robb, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020   Page 12 of 12
