MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Mar 04 2020, 7:55 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
Alexander W. Robbins                                     Curtis T. Hill, Jr.
Bloomington, Indiana                                     Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 4, 2020
of Parental Rights of: J.K.                              Court of Appeals Case No.
(Minor Child), and                                       19A-JT-2341
F.K. (Mother),                                           Appeal from the Morgan Circuit
                                                         Court
Appellant-Respondent,
                                                         The Honorable Matthew G.
        v.                                               Hanson, Judge
                                                         Trial Court Cause No.
Indiana Department of                                    55C01-1903-JT-83
Child Services,
Appellee-Petitioner



Baker, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020                  Page 1 of 18
[1]   F.K. (Mother) appeals the trial court’s order terminating her relationship with

      her child, J.K. (Child). Mother argues that (1) her attorney was ineffective for

      failing to move to dismiss the termination proceedings when it exceeded the

      statutory time limit; and (2) the evidence is insufficient to support the

      termination order. Finding that Mother’s attorney was not ineffective and that

      the evidence is sufficient, we affirm.


                                                         Facts
[2]   Mother has a prior history with the Department of Child Services (DCS). At

      some point in the past, she had a Child in Need of Services (CHINS) case that

      ended in the termination of her parent-child relationship with another child; the

      primary issue in that case was substance abuse.


[3]   Child was born on November 8, 2017,1 and was removed from Mother’s care

      less than a month later after Mother was arrested on drug and drug

      paraphernalia charges.2 On December 18, 2017, DCS filed a petition alleging

      that Child was a CHINS based on Mother’s arrest and other allegations. On

      January 18, 2018, Mother admitted that Child was a CHINS because “she is

      facing criminal charges, that she has ongoing substance abuse issues, that she is

      enrolled in [Intensive Outpatient Treatment] now, [and] that she has issues with




      1
       It appears that Child’s father has never been a part of her life. He did not appeal the termination of his
      parental rights.
      2
       Child was originally placed in relative care but later moved to foster care after allegations of inappropriate
      behavior on the part of the relative caregivers.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020                       Page 2 of 18
      stability.” Tr. Ex. 7. At the dispositional hearing, the trial court ordered

      Mother to participate in services, including completing a substance abuse

      assessment and complying with all recommendations, submitting to random

      drug screens, and participating in group and individual counseling. Mother was

      also ordered to maintain stable and appropriate housing and income, and she

      was informed that any missed drug screen would be assumed to be positive.


[4]   From February 16 through March 22, 2018, DCS collected three drug screens

      that were positive for illegal substances including methamphetamine. Over the

      course of the rest of 2018, Mother did not have any positive drug screens, but

      she failed to report for screens on many occasions.


[5]   In April 2018, Mother failed to participate with most of her services, though she

      did participate sporadically with intensive outpatient treatment (IOP). After

      she had issues with someone in her IOP group and began to fail to attend, she

      was moved to a new IOP group. By mid-May, Mother was no longer permitted

      to attend the new IOP group because of her attitude and unwillingness to

      participate. At some point she resumed participation with IOP and successfully

      completed the program in November 2018. She did not, however, complete the

      required aftercare program or the recommended follow-up services of

      individual therapy, life skills, and recovery coaching.


[6]   Things began to improve for Mother in July 2018, when she participated in

      IOP, therapy, and home-based case management. DCS began to move Mother

      and Child to semi-unsupervised visits because of the progress Mother was


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 3 of 18
      making. By late August 2018, Mother had moved in with her boyfriend, C.B., 3

      on whom she relied financially. DCS tried to get C.B. involved in services but

      Mother refused to provide his contact information to get the process started.


[7]   In October 2018, Mother’s therapist became aware of fighting between Mother

      and C.B. and recommended that they obtain couples counseling. On

      November 8, 2018, Mother told her therapist that C.B. was high and throwing

      things at her; the police were called and C.B. left the home. Following this

      incident, service providers determined that Mother was not taking her

      medication and had permitted C.B. to return home despite agreeing not to. She

      kicked her therapist out of the house during a session and began minimizing the

      domestic violence issues. On November 25, 2018, C.B. was arrested following

      a domestic violence incident.4


[8]   In December 2018, Mother was living in a shelter, had no transportation, and

      was unemployed. She reported a relapse on methamphetamine and heroin and

      also reported that she was pregnant. As a result of the relapse and other issues,

      DCS referred Mother for a new substance abuse evaluation and a psychological

      evaluation. Mother failed to attend the substance abuse evaluation and, in

      January 2019, was discharged from visitation, individual therapy, and home-

      based case management for noncompliance. She also left the shelter because




      3
          At some point during the CHINS case, Mother and C.B. got married.
      4
          Mother later reported to a therapist that C.B. had dragged her by her hair and raped her.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020                   Page 4 of 18
       she did not want to follow the rules. In February 2019, Mother disappeared,

       failing to show up for her rescheduled psychological evaluation and failing to

       attend multiple drug screens. Mother later admitted that her December 2018

       relapse continued through March 2019 and included almost daily drug use.


[9]    On March 1, 2019, DCS filed a petition to terminate the parent-child

       relationship between Mother and Child. A few days before the initial hearing

       on March 21, 2019, Mother and C.B. were arrested on drug-related charges

       after she was found in a residence with C.B. where drugs were being used. She

       was in the Morgan County Jail at the time of the initial hearing. In late March,

       Mother was released from jail but failed to participate in any services or keep in

       contact with DCS. In April, Mother failed to provide DCS with her current

       address or a working phone number, attend a psychological evaluation, or

       attend multiple drug screens.


[10]   In May 2019, Mother completed a substance abuse and parenting assessment

       and was recommended for services, including domestic abuse counseling. She

       moved to the Julian Center but did not attend the recommended services and

       failed, on multiple occasions, to attend random drug screens. Later that month,

       she moved to Crawfordsville and began participating with some services there.

       In June 2019, Mother gave birth and her newborn died shortly thereafter.


[11]   In July, Mother finally completed a psychological evaluation and began

       participating with IOP again. The psychological evaluation resulted in

       diagnoses of major depression, anxiety, post-traumatic stress disorder, drug


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 5 of 18
       disorders, and schizoaffective disorder, and she was deemed paranoid and

       delusional. She had just begun counseling and medication to address these

       issues in the weeks leading up to the termination hearing. Mother reported to

       her counselor that she and C.B. had had numerous incidents of domestic

       violence, often tied to occasions when they were drinking alcohol.


[12]   Over the course of the CHINS case, Mother lived in Martinsville, Indianapolis,

       and Crawfordsville, with friends and in shelters and motels. She was removed

       from at least two facilities for noncompliance. A few weeks before the

       termination hearing, Mother moved into transitional housing with C.B. through

       a service provider in Crawfordsville. Mother was unemployed, as she had been

       throughout most of the CHINS case, and at some point before the termination

       hearing, C.B. lost his job. They had both received multiple infractions through

       the service provider and were at risk of being discharged from the program and

       losing their housing. Shortly before the third and final day of the termination

       hearing, Mother and C.B. were each employed and had secured an apartment.


[13]   The termination hearing took place over the course of August 22, August 27,

       and September 5, 2019. The second day of the hearing was day 179 of the 180-

       day statutory period.5 Counsel for Mother requested additional time to




       5
         Indiana Code section 31-35-2-6(a)(2) requires that the factfinding hearing on a petition to terminate parental
       rights “shall” be completed not more than 180 days after the petition was filed.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020                      Page 6 of 18
       complete her presentation of evidence and did not object when the third day of

       the hearing was set outside of the 180-day period.


[14]   On September 9, 2019, the trial court issued a lengthy and detailed order

       terminating Mother and Child’s parent-child relationship. In pertinent part, it

       concluded as follows:


               208. The mother’s drug issues have not been remedied, have
                    controlled most of her adult life and have continued up to
                    a time after this termination case was filed.


               209. That while mother has taken very recent steps to remedy
                    her drug issues it is clearly reasonable to believe from her
                    testimony, her actions and her history with DCS that these
                    are only temporary and very late to address her very
                    serious drug issues.


                                                        ***


               226. Since the start of this case [Mother] has stayed nowhere
                    for any significant period of time and has not taken the
                    steps necessary, until just last week, to find a place of her
                    own.


               227. That this stability issue is unacceptable over such a long
                    period of time and the short period of stability over the last
                    few months does not overcome this finding.


                                                        ***


               230. That once more, only after the termination case was filed
                    and only in the past two months has mother found work.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 7 of 18
                                                 ***


        236. That over the life of this case mother has denied any issues
             with domestic violence and only recently (on the stand at
             the last hearing and in counseling) has admitted there may
             be some domestic violence issues.


                                                 ***


        239. That the husband is clearly a poor choice in relationships,
             was a clear catalyst for leading mother to end her services
             in 2018, return to a drug life from December of 2018 to
             March of 2019 and only after the termination case was
             filed is he involved in some services in this case.


                                                 ***


        249. That had the mother gone to any one of the
             [psychological] assessments back in 2018 she might have
             been able to start to tackle these very serious [mental
             health] issues.


        250. However, as noted throughout this case, she did not take
             the necessary steps and once more, only in the last two
             months, has decided perhaps her mental health issues are a
             priority.


                                                 ***


        254. That the drug issues continued until only after this
             termination was filed, the instability is still in question as
             mother just obtained her own housing and is now married
             to a batterer and partner in drug use, and mother’s mental


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 8 of 18
                 health issues are beyond a simple challenge that can be
                 easily be overcome.


                                                 ***


        262. That clearly if boyfriend/husband presents a danger to the
             mother and those issues have not been addressed, then he
             would present a danger to the child if the child was
             returned to mother.


        263. That mother testified that she lost another child to the
             DCS system at a time when she did not want to “fight” for
             that child.


                                                 ***


        266. The mother admitted to using heroin and
             methamphetamine “daily” from December of 2018 to
             March of 2019.


        267. That mother was aware of the pregnancy during those
             times.


                                                 ***


        272. That if mother is willing to place an unborn child in such a
             position and is willing to simply “not fight” for another
             live child that was lost to DCS, it is fair to assume that
             somewhere down the road this child would be in serious
             danger if mother simply decided to give up or return to
             drug use as she has done for most of her adult life.


                                                 ***

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 9 of 18
        280. . . . [I]n a controlled [supervised visitation] environment
             free of drugs, domestic violence, with proper shelter and
             supervision of the mother, things [between Mother and
             Child] are great and the relationship is strong.


        281. That without these services and things in place, this court
             is not convinced[] that this relationship overcomes the very
             real threats facing this child with this parent.


                                                 ***


        287. This child has waited most of her life for her mother to get
             her act together.


                                                 ***


        291. . . . [O]nly after the death of her third child has the mother
             decided it was time to look after the best interests of this
             child.


                                                 ***


        293. . . . [E]ven after the termination was filed she took few
             steps to get reengaged in services until after the death of
             her infant which suggests she is responding finally here out
             of a deep sadness rather than what is in the best interests of
             this little girl that has been without a mother for most of
             her life.


Appealed Order p. 15-23. Mother now appeals.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 10 of 18
                                    Discussion and Decision
                                    I. Assistance of Counsel
[15]   First, Mother argues that her trial counsel was ineffective for failing to object

       when the third day of the factfinding hearing was set outside the 180-day

       window mandated by Indiana Code section 31-35-2-6(a)(2).


[16]   Indiana has chosen to provide counsel in termination proceedings to all parents

       who are indigent. Baker v. Marion Cty. Office of Family & Children, 810 N.E.2d

       1035, 1038 (Ind. 2004). Those parents have a right to effective assistance, but

       the measure of counsel’s performance is not identical to that applied in the

       criminal justice context. Instead, our Supreme Court has held that the

       following standard is applied to the performance of counsel in termination of

       parental rights cases:


               Where parents whose rights were terminated upon trial claim on
               appeal that their lawyer underperformed, we deem the focus of
               the inquiry to be whether it appears that the parents received a
               fundamentally fair trial whose facts demonstrate an accurate
               determination. The question is not whether the lawyer might have
               objected to this or that, but whether the lawyer’s overall
               performance was so defective that the appellate court cannot say
               with confidence that the conditions leading to the removal of the
               children from parental care are unlikely to be remedied and that
               termination is in the child’s best interest.


       Id. at 1041 (emphasis added).




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 11 of 18
[17]   When a parent does not object to a hearing being set outside of the 180-day

       limit, any objection is waived and the result of the termination proceeding may

       stand. In re N.C., 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017). Here, Mother’s

       attorney did not object, and she argues that he was ineffective for failing to do

       so. Had he objected, she maintains that she would have had more time to

       prove her stability and show that she was serious about participating with

       services and bettering herself as a parent.


[18]   Mother’s argument is precisely what was foreclosed by our Supreme Court—

       that her attorney was ineffective for failing to object at one singular point in the

       hearing. She even acknowledges that “the actual proceedings conducted in this

       case were not unfair. [Trial counsel] did a wonderful job of crossing and

       pushing back on DCS witnesses, and in arguing on his client’s behalf.”

       Appellant’s Br. p. 24 n.3. And indeed, having reviewed the record, it is

       apparent that her attorney did as good a job as could be done with a challenging

       set of facts. In no event does the record support a conclusion that counsel’s

       overall performance was so defective that the factfinding hearing was

       fundamentally unfair. Therefore, we decline to reverse on this basis.


                                            II. Termination
[19]   Next, Mother argues that the evidence is insufficient to support the termination

       of her relationship with Child. 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


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 12 of 18
       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) (internal quotations

       omitted).


[20]   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.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 13 of 18
                        (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.


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

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


[21]   Mother argues that the evidence does not support the trial court’s conclusion

       that there is a reasonable probability that the conditions resulting in Child’s


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 14 of 18
       removal and continued placement outside of her care and custody will not be

       remedied. The trial court identified three broad categories of reasons for the

       original and continued removal of Child from Mother: (1) substance abuse;

       (2) instability in housing and life, including employment and her relationship

       with her husband; and (3) Mother’s mental health struggles.


[22]   With respect to Mother’s substance abuse, the record reveals that in February

       and March 2018, she provided three drug screens that were positive for

       methamphetamine. Then she relapsed in December 2018. Her relapse

       continued through March 2019, and she later admitted to nearly daily use of

       substances, including heroin and methamphetamine, even though she knew

       that she was pregnant at that time. During her periods of sobriety, she has

       provided some clean screens, but she has also failed to report for countless other

       screens, which are considered to be positive. While she completed an IOP

       program, she failed to participate with or complete the required aftercare

       services. It appears that Mother was clean and in substance abuse services at

       the time of the factfinding hearing, but when her habitual patterns of conduct

       and the overall history of the case—as well as the fact that her parental rights as

       to another child were terminated in the past because of her substance abuse—

       are considered, the outlook is not promising.


[23]   With respect to Mother’s stability, she argues that as of the final day of the

       termination hearing, she had an apartment and a job, was making ends meet

       financially, and had had no recent episodes of domestic violence with her

       husband. Our Supreme Court has observed that it is within the discretion of the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 15 of 18
       trial court to “disregard the efforts [a parent] made only shortly before

       termination and to weigh more heavily [the parent’s] history of conduct prior to

       those efforts.” K.T.K., 989 N.E.2d at 1234. Here, even if we only turn the

       clock back to the time at which DCS filed the termination petition, Mother was

       arrested shortly thereafter. Upon her release, DCS referred more services for

       Mother but she failed to participate for months. It was not until four months

       after the termination petition was filed that Mother finally completed required

       assessments, and she never participated in a second round of IOP treatment.


[24]   Mother’s housing was unstable throughout all the CHINS and termination

       cases. She moved from town to town and from motels to shelters to friends’

       couches. She was kicked out of two shelters for noncompliance. Therefore, the

       fact that shortly before the third and final day of the termination hearing she

       and C.B. had managed to secure an apartment does not outweigh her lengthy

       history of housing instability.


[25]   As to her life stability, she continues to live with her husband, C.B., who has

       allegedly battered and raped her in the past. Throughout the CHINS case,

       Mother refused to acknowledge the domestic violence in her relationship and

       did not even report it to DCS until DCS learned about it through a police

       report. It was not until the termination hearing that she finally admitted to the

       issue. Neither Mother nor C.B. has ever participated fully with a program of

       treatment designed to address domestic violence. Multiple service providers

       testified that they would have serious concerns about Child’s safety if she were



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 16 of 18
       placed with Mother and C.B. because of the ongoing, untreated domestic

       violence in the home.


[26]   Finally, with respect to Mother’s mental health issues, she failed to complete a

       required psychological assessment despite the many times it was scheduled in

       2018 and 2019 until July 2019, four months after the termination petition was

       filed. At that time, Mother was diagnosed with a number of serious mental

       health problems and began to be treated for those diagnoses, including therapy

       and medication. As the trial court noted, had she completed the assessment a

       year earlier, she would have been able to show a track record of treating and

       coping with the diagnoses. But because she waited until the end of the

       termination proceedings to complete the assessments, the trial court was unable

       to evaluate her progress or the likelihood that she would become healthy

       enough to be a safe and appropriate parent.


[27]   Mother seemed to have made some progress on many of her obstacles in the

       days leading up to the third and final day of the termination hearing. But given

       the evidence in the record, we cannot second-guess the trial court’s conclusion

       that it was simply too little, too late. Her patterns of an inability, unwillingness,

       or lack of commitment to address her issues, to cooperate with services, and to

       abide by the trial court’s orders demonstrate that there is a reasonable

       probability that the conditions resulting in Child’s original and continued

       removal from her care and custody will not change. Mother’s arguments to the




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020   Page 17 of 18
       contrary amount to a request that we reweigh the evidence, which we may not

       do.6


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


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




       6
         Mother also argues that the evidence does not support a conclusion that there is a reasonable probability
       that the continuation of her relationship with Child poses a threat to Child’s well-being. As the statutory
       elements are phrased in the disjunctive, we need not consider this argument, but we note that the evidence
       already discussed herein likewise supports the trial court’s conclusion on this element of the termination
       statute.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2341 | March 4, 2020                   Page 18 of 18
