MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  Apr 18 2018, 8:46 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 APPELLANTS                                   ATTORNEYS FOR APPELLEE
Andrew J. Sickmann                                        Curtis T. Hill, Jr.
Boston Bever Klinge Cross & Chidester                     Attorney General
Richmond, Indiana
                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 18, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of D.J. (Minor                               89A01-1711-JT-2675
Child) and                                                Appeal from the Wayne Superior
K.T. (Mother) and P.J. (Father),                          Court
                                                          The Honorable Darrin M.
Appellants-Respondents,
                                                          Dolehanty, Judge
        v.                                                Trial Court Cause No.
                                                          89D03-1707-JT-14
The Indiana Department of
Child Services,
Appellee-Petitioner



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018               Page 1 of 16
                                              Case Summary
[1]   K.T. (“Mother”) and P.J. (“Father”) (collectively “Parents”) appeal the trial

      court’s order involuntarily terminating their parental rights to their minor child,

      D.J. (“Child”). Parents contend that the trial court erred in concluding that

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

      removal will not be remedied and that termination is in Child’s best interests.

      They also contend that their due process rights were violated when the trial

      court overruled their objections to being called as witnesses by the Indiana

      Department of Child Services (“DCS”) at the factfinding hearing. Finding no

      error and no due process violation, we affirm.


                                  Facts and Procedural History
[2]   Parents are Child’s biological parents. Before Child was born, Parents lived

      with Child’s two half siblings, Jo.B. and Ja.B. In March 2016, DCS filed

      petitions alleging that Jo.B. and Ja.B. were children in need of services

      (“CHINS”). In May 2016, Parents admitted to the truthfulness of the

      allegations in the petitions, including that they each had a substance abuse

      problem that affected their ability to care for the children. The trial court in

      those proceedings ordered Parents to participate in certain services. On August

      19, 2016, the court held a detention hearing, after which the children were

      removed from Parents’ home and made temporary wards of DCS.


[3]   Child was born on August 22, 2016. One week later, while Child was still in

      the hospital, DCS filed a petition alleging Child to be a CHINS. The trial court


      Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018   Page 2 of 16
      authorized DCS to take Child into protective custody because he had tested

      positive for illegal substances at birth and Parents were using illegal drugs,

      including heroin. DCS placed Child with his maternal aunt. Parents initially

      denied the allegations in the CHINS petition but ultimately admitted that Child

      was a CHINS and that they had a substance abuse problem. In November

      2016, the trial court issued a dispositional order directing Parents to participate

      in various services. DCS referred Parents for outpatient and residential

      substance abuse treatment, supervised parenting time, drug screens, and a

      residential detoxication program. As detailed more fully below, after a hearing

      on January 23, 2017, the trial court found Parents in contempt of the

      dispositional order and sentenced them to sixty days of incarceration, to be

      stayed on the condition of full compliance with the order. 1


[4]   In March 2017, the CHINS cases were closed for Jo.B. and Ja.B., who at that

      time were living with their biological father. On July 5, 2017, DCS filed a

      petition to involuntarily terminate Parents’ parental rights to Child. On

      October 12, 2017, the trial court held a factfinding hearing, during which DCS

      called Parents as witnesses in its case in chief over their objections. On October




      1
        On that same date, a contempt hearing was also held in Jo.B.’s and Ja.B.’s CHINS cases. Mother admitted
      that drug screens administered between September and December of 2016 showed that she had used heroin,
      marijuana, suboxone, and hydrocodone. Father admitted that drug screens administered between September
      and December of 2016 showed that he had used heroin, marijuana, and cocaine. “He also admitted that he
      had failed to attend substance abuse therapy and was removed from that program due to having failed to
      attend.” Appealed Order at 2. He further admitted that he had missed six visits with the children in
      November 2016.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018        Page 3 of 16
30, 2017, the court issued an order setting out the foregoing undisputed facts

and the following additional findings:2


           34. Shannon Trancoso was selected as the Court Appointed
           Special Advocate (CASA) for Child, as of October 28, 2016.

           35. Ms. Trancoso has observed interaction between Child,
           Mother and Father.

           36. During the course of Child’s CHINS case, Ms. Trancoso has
           spoken with Mother about her addiction issues. Mother has
           expressed to Ms. Trancoso that her addiction started at the age of
           nineteen (19). Mother is now twenty-five (25) years old. Mother
           was not specific about which drug or drugs she was abusing.

           37. Mother has expressed to Ms. Trancoso a desire to not be an
           addict.

           38. Father has expressed to Ms. Trancoso that he does not like
           the "position" he is in currently.

           39. Ms. Trancoso has not seen Child or his parents since
           February, 2017.

           40. Patrice Mabry is employed as a Family Case Manager
           (FCM) for the DCS, and was assigned to Jo.B.’s and Ja.B[.]’s
           CHlNS cases.

           ….

           42. At some point during Child’s CHINS case, FCM Mabry was
           assigned to that case as well.




2
    We have replaced references to the parties’ names where appropriate.


Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018   Page 4 of 16
        ….

        44. Both Mother and Father admitted to FCM Mabry that they
        had substance abuse issues.

        ….

        46. On some date that was not disclosed, FCM Mabry took
        Father to Tara Treatment Center, for inpatient treatment. Father
        was not admitted into the treatment program due to not having
        his diabetes condition under control.

        ….

        52. Tom Pennington is an addictions counselor for Meridian
        Services.

        53. Mr. Pennington interacted with Mother through the
        attempted provision of “IOP” or intensive outpatient therapy.

        54. IOP sessions are held three (3) times per week; three (3)
        hours per session.

        55. Mother was involved in Mr. Pennington’s services from
        December, 2016 through February, 2017.

        56. In December, 2016, Mother attended one (1) appointment
        with Mr. Pennington, where they discussed her substance abuse
        issues, and where they determined that she should start action
        IOP sessions after the first of the year.

        57. During IOP sessions in January, 2017, Mother was
        somewhat resistant to the program, but warmed up to it and
        participated well in sessions.

        58. During the January sessions, Mother admitted that she was

Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018   Page 5 of 16
        using marijuana, xanax, and opiates.

        59. In February, 2017, Mother’s attendance at IOP sessions
        dropped off. Mr. Pennington called Mother to encourage her
        attendance, but she stopped attending.

        60. In August, 2017, Mother attended three (3) or four (4)
        sessions of IOP, but has not attended since then.

        61. Mother has not completed the IOP program.

        62. At a hearing held on January 23, 2017, Mother admitted that
        she had used heroin between November 4 and December 27,
        2016.

        63. At the same hearing, Father admitted that he had used
        heroin, marijuana, and cocaine between November 9 and
        December 19, 2016. He also admitted that he had failed to
        attend substance abuse therapy at Meridian Health Services, and
        had failed to visit Child six (6) times in November 2016.

        64. Based upon the admissions described above, the Court
        concluded that Mother and Father were both in contempt of
        Court for not complying with the Dispositional Order.

        65. Jessica Bell is a Behavioral Clinician for Meridian Services.


        66. Ms. Bell was assigned to provide services for Mother in
        January, 2017, and served as Mother’s “case manager.”

        67. Ms. Bell worked with Mother to help her identify "triggers"
        to her drug use/abuse. She also worked with Mother to help her
        find coping skills to prevent drug use/abuse.

        68. At some time during Ms. Bell’s involvement as case
        manager, Mother told her that she had been abusing suboxone

Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018   Page 6 of 16
        and marijuana.

        69. Mother did not attend all of her appointments with Ms. Bell.

        70. Mother was engaged and motivated during the appointments
        she did attend.

        7|. Prior to this trial, the last time Mother attended an
        appointment with Ms. Bell was toward the end of August, 2017.

        ….

        78. Jeremy Bane is a home-based services case manager for
        Wernle Family and Children Treatment.

        79. In late June, 2017, Mr. Bane received a referral from the
        DCS to provide supervised parenting time/visitation services for
        Mother and Father.

        ….

        85. Mr. Bane has observed Mother and Father to be compliant,
        to communicate well, and to be nurturing and caring toward
        Child. He has observed the parents to select age appropriate
        activities for their child.

        86. Mr. Bane has had no concerns about how the parenting time
        sessions have gone.

        87. Mr. Bane tries to encourage the parents to work on their
        rehabilitation needs. and even took Father to the Richmond State
        Hospital on September 25, 2017 in an effort to enter into a rehab
        program at that facility. Following a drug screen in the
        admission process, Father was not admitted into the State
        Hospital program.

        88. If parental rights are terminated, the DCS plans for Child to

Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018   Page 7 of 16
        be adopted by his aunt, … with whom he has been placed since
        shortly after his birth.

        ….

        94. Despite the existence of a child support order, [Child’s aunt]
        has not received any child support payments from Mother or
        Father to assist her in caring for Child.

        95. Mother has been unemployed since 2015.

        96. Mother has three (3) children.

        97. None of Mother’s children lives with her at this time. Child
        is placed with a relative. Ja.B. and Jo.B. live with their father.

        98. Father is thirty-two (32) years old.

        99. Father has two (2) children, including Child.

        100. Neither of Father’s children lives with him.

        Based upon these findings. the Court concludes that the DCS has
        sustained the Petition by clear and convincing evidence; more
        specifically that:

        ….

        2. Child has been removed from both parents, for at least six (6)
        months, under the Dispositional Order in his Child in Need of
        Services (CHINS) case.…

        3. Child was removed from his parents’ care shortly after birth.
        and has continuously remained outside of their care since then,
        because both parents were abusing drugs that necessarily
        impaired their ability to care for their child. There remains a
        greater than reasonable probability that the parents’ respective

Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018   Page 8 of 16
              addictions to drugs, and continued abuse of drugs, are not likely
              to be remedied.

              4. Ending the relationship between Child and his parents, and
              providing for a stable and sober parent or parents is the best
              course of action for this child and termination of parental rights is
              in Child’s best interest.

              5. There is a satisfactory plan for Child’s care and treatment, that
              plan being adoption.

              IT IS THEREFORE ORDERED that the parent-child
              relationship [between Parents and Child] is hereby terminated ….


      Appealed Order at 3-7 (citation to exhibit omitted). Parents now appeal.


                                      Discussion and Decision
[5]   “Parental rights are of a constitutional dimension, but the law provides for the

      termination of these rights when the parents are unable or unwilling to meet

      their parental responsibilities.” In re D.P., 27 N.E.3d 1162, 1165 (Ind. Ct. App.

      2015). “The purpose of terminating parental rights is not to punish parents, but

      to protect their children.” Id. “The involuntary termination of parental rights is

      the most extreme sanction a court can impose on a parent because termination

      severs all rights of that parent to his or her children.” In re R.A., 19 N.E.3d 313,

      321 (Ind. Ct. App. 2014), trans. denied (2015). “For this reason, termination is

      intended as a last resort, available only when all other reasonable efforts have

      failed.” Id.




      Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018   Page 9 of 16
[6]   A petition for the involuntary termination of parental rights must allege in

      pertinent part:


              (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.

                       ….


              (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.


      Ind. Code § 31-35-2-4(b)(2) (emphasis added). DCS must prove “each and

      every element” by clear and convincing evidence. In re G.Y., 904 N.E.2d 1257,

      1261 (Ind. 2009); Ind. Code § 31-37-14-2. If the trial court finds that the

      Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018   Page 10 of 16
      allegations in the petition are true, the court shall terminate the parent-child

      relationship. Ind. Code § 31-35-2-8(a).


[7]   “Our standard of review is highly deferential in cases concerning the

      termination of parental rights.” D.P., 27 N.E.3d at 1165.


              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.


      C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 92-93 (Ind. Ct. App. 2014)

      (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 W.M.L., 82 N.E.3d 361, 367 (Ind. Ct. App. 2017).


[8]   Parents contend that the trial court clearly erred in concluding that there is a

      reasonable probability that the conditions that resulted in Child’s removal will

      not be remedied3 and that termination is in Child’s best interests. They also




      3
        As stated above, the trial court concluded that there was a “greater than reasonable probability” that the
      conditions that resulted in Child’s removal will not be remedied. Appealed Order at 7. We take this to mean
      that DCS surpassed its statutory burden. We express no opinion on this assessment.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018          Page 11 of 16
      claim that their due process rights were violated by being called as witnesses by

      DCS at the factfinding hearing.


         Section 1 – The trial court’s order is not clearly erroneous.
[9]   To determine whether the conditions that resulted in a child’s removal will not

      be remedied, the trial court engages in a two-step analysis. In re A.W., 62

      N.E.3d 1267, 1273 (Ind. Ct. App. 2016). “The court first identifies the

      conditions that led to removal and then determines whether there is a

      reasonable probability that those conditions will not be remedied.” Id. “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. (quotation marks omitted). “Trial courts have discretion to

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

      before termination, and the court may find that a parent’s past behavior is the

      best predictor of her future behavior.” Id. The trial court may consider services

      offered 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. “Where there are only

      temporary improvements and the pattern of conduct shows no overall progress,

      the court might reasonably find that under the circumstances, the problematic

      situation will not improve.” In re Involuntary Termination of Parent Child

      Relationship of A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). DCS “is not

      Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018   Page 12 of 16
       required to provide evidence ruling out all possibilities of change; rather, it need

       only establish that there is a reasonable probability that the parent’s behavior

       will not change.” A.D.S., 987 N.E.2d at 1157 (quotation marks omitted).


[10]   In determining what is in a child’s best interests, the trial court is required to

       look to the totality of the evidence. In re A.G., 45 N.E.3d 471, 479 (Ind. Ct.

       App. 2015), trans. denied (2016). In so doing, the court must subordinate the

       interests of the parents to those of the child. Id. “The court need not wait until

       the child is irreversibly harmed before terminating the parent-child

       relationship.” Id.


[11]   Parents challenge only eight of the trial court’s one hundred findings (numbers

       36, 37, 38, 44, 46, 58, 62, and 63), claiming that they are insufficiently specific

       to support the court’s conclusions that there is a reasonable probability that the

       conditions that resulted in Child’s removal, i.e., Parents’ addiction to and abuse

       of drugs, will not be remedied and that termination is in Child’s best interests. 4

       They assert that “[w]hat was offered at the fact finding hearing was a general

       framework of some substance abuse, but it was unclear when drugs were used,

       over what time period, and whether substance abuse remained a problem at the

       time of the fact finding hearing.” Appellants’ Br. at 15-16.


[12]   We disagree. Parents do not specifically challenge the CASA’s testimony

       regarding Mother’s admission to a six-year history of drug addiction. During



       4
           We treat Parents’ best interests argument as coextensive with their remedied conditions argument.


       Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018            Page 13 of 16
       the CHINS proceedings involving Child and his half siblings, which started in

       March 2016, Parents admitted to using (and/or testing positive for using)

       heroin, cocaine, meth, marijuana, Xanax, and opiates up to and including

       January 2017. Parents admitted to having a substance abuse problem in

       September 2016 and only sporadically attended court-ordered substance abuse

       therapy and treatment. Mother stopped attending sessions two months before

       the October 2017 factfinding hearing, and a drug screen prevented Father from

       enrolling in a rehabilitation program less than three weeks before the hearing.

       Based on the trial court’s findings and the reasonable inferences to be drawn

       therefrom, we cannot say that the trial court clearly erred in concluding that

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

       removal will not be remedied and that termination is in Child’s best interests.


           Section 2 – Parents’ due process rights were not violated as a
                    result of being called as witnesses by DCS.
[13]   When DCS called Parents as witnesses during its case in chief, they objected on

       the basis that they would be asked incriminating questions regarding drug use

       and other matters. The trial court overruled the objections and noted that

       Parents’ counsel could object to such questions on Fifth Amendment grounds,

       which counsel did.5 The trial court sustained those objections and stated that it

       would decline to draw negative inferences from Parents’ refusal to testify. Cf.




       5
        See U.S. CONST., amend. V (“No person … shall be compelled in any criminal case to be a witness against
       himself, nor be deprived of life, liberty, or property, without due process of law ….”).

       Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018        Page 14 of 16
       Hardiman v. Cozmanoff, 4 N.E.3d 1148, 1152 (Ind. 2014) (noting that Fifth

       Amendment protects individual against being involuntarily called as witness

       against himself in criminal prosecution but “‘does not forbid adverse inferences

       against parties to civil actions when they refuse to testify in response to

       probative evidence offered against them.’”) (quoting Baxter v. Palmigiano, 425

       U.S. 308, 318 (1976)).


[14]   On appeal, Parents argue that the termination order should be reversed because

       the trial court’s overruling of their objections to being called as witnesses

       violated their due process rights. DCS argues, and we agree, that reversal is not

       required because Parents cannot demonstrate harm resulting from any alleged

       due process violation, given that the trial court declined to draw negative

       inferences from their refusal to answer certain questions on Fifth Amendment

       grounds. See Ind. Appellate Rule 66(A) (“No error or defect in any ruling or

       order or in anything done or omitted by the trial court or by any of the parties is

       ground for granting relief or reversal on appeal where its probable impact, in




       Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018   Page 15 of 16
       light of all the evidence in the case, is sufficiently minor so as not to affect the

       substantial rights of the parties.”). Therefore, we affirm.6


[15]   Affirmed.


       Bailey, J., and Brown, J., concur.




       6
         We reject Parents’ argument that “procedural due process should afford parents like Mother and Father the
       ability to not be called as witnesses against themselves, pursuant to the rights enshrined in the Fifth
       Amendment as incorporated to the states by the Fourteenth Amendment.” Appellants’ Br. at 28. This
       argument is based on the faulty premise that termination proceedings are quasi-criminal in nature. Cf. In re
       E.D., 902 N.E.2d 316, 322 (Ind. Ct. App. 2009) (“The due process safeguards afforded a defendant in a
       criminal trial are not applicable to a parent in a civil termination proceeding. Indeed, our Indiana Supreme
       Court has recognized that ‘criminal prosecutions and termination proceedings are substantially different in
       focus. The resolution of a civil juvenile [termination] proceeding focuses on the best interests of the child,
       not on guilt or innocence as in a criminal proceeding.’”) (alteration in E.D.) (quoting Baker v. Marion Cty.
       Office of Family & Children, 810 N.E.2d 1035, 1039 (Ind. 2004)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018            Page 16 of 16
