MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Oct 16 2019, 8:46 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan B. Quirk                                            Curtis T. Hill, Jr.
Public Defender                                           Attorney General of Indiana
Quirk & Hunter, P.C.                                      Robert J. Henke
Muncie, Indiana                                           Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              October 16, 2019
Parent-Child Relationship of                              Court of Appeals Case No.
G.C. (Minor Child) and                                    19A-JT-935
J.M. (Mother),                                            Appeal from the Delaware Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Kimberly Dowling,
        v.                                                Judge
                                                          The Honorable Amanda Yonally,
Indiana Department of Child                               Magistrate
Services,                                                 Trial Court Cause No.
                                                          18C02-1809-JT-87
Appellee-Petitioner.



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-935 | October 16, 2019                Page 1 of 10
[1]   The Delaware Circuit Court terminated J.M.’s (“Mother”) parental rights to her

      minor child, G.C. Mother appeals and argues that termination of her parental

      rights is not supported by clear and convincing evidence.


[2]   We affirm.


                                  Facts and Procedural History

[3]   G.C. was born in October 2012. On February 20, 2017, G.C. was removed

      from Mother’s care due to Mother’s arrest and incarceration. Mother was

      arrested for theft and leaving G.C. unattended in her vehicle in a Target parking

      lot. G.C. was placed in her maternal great grandmother’s care.


[4]   On the day Mother was arrested, Mother and G.C. were living in a hotel but

      were facing eviction that day. Mother has a history of substance abuse and has

      used illicit substances, including heroin, for several years. G.C. was adjudicated

      a child in need of services (“CHINS”) on April 11, 2017.

[5]   Mother was incarcerated between February 20, 2017 and late September 2017.

      She had also been incarcerated for short periods of time on five occasions in

      2016. During those incarcerations, G.C.’s maternal grandmother and maternal

      great grandmother cared for her.


[6]   Between December 2015 and January 2019, nine separate criminal cases were

      filed against Mother in four different Indiana counties. The criminal cases

      included a probation violation, violation of pre-trial release, multiple charges

      for theft and auto theft, a driving while suspended charge, and neglect of a


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-935 | October 16, 2019   Page 2 of 10
      dependent. Four of the criminal cases were initiated during the CHINS

      proceedings. Mother was found guilty in four of the criminal cases and two

      were dismissed by plea agreement. Three of the cases were still pending in

      January 2019. Approximately thirteen warrants were issued for Mother’s arrest

      based on her failure to appear at hearings relating to her criminal cases.

      However, she failed to appear at several of those hearings because she was

      incarcerated in another county.


[7]   Mother also failed to appear for hearings in the CHINS proceedings held in

      February 2018 and August 2018. Mother was not incarcerated on the dates of

      those hearings. At the February 5, 2018 permanency hearing, the trial court

      ordered that Mother would not have visitation with G.C. until she contacted

      the Department of Child Services (“DCS”) and engaged in services. At the

      August 6, 2018 periodic review hearing, DCS reported that Mother had not

      engaged in services or maintained contact with the department.


[8]   Due to her incarceration and failure to participate in services, Mother has only

      had in person visitation with G.C. on one occasion since February 20, 2017, the

      date G.C. was removed from Mother’s care. The visitation was unauthorized.

      However, Mother frequently spoke with G.C. on the phone throughout these

      proceedings.

[9]   DCS made a referral for Mother to undergo a substance abuse assessment while

      she was incarcerated at the Delaware County Jail during the CHINS

      proceedings. After she was released from incarceration, Mother failed to seek


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-935 | October 16, 2019   Page 3 of 10
       substance abuse treatment. The family case manager contacted Mother on

       numerous occasions requesting her address. Mother failed to respond or

       responded with multiple addresses. The family case manager unsuccessfully

       attempted to locate Mother at those addresses. Mother also had a standing

       appointment for drug screens each week, but Mother failed to appear for weekly

       drug screens. Mother occasionally submitted to drug screens throughout these

       proceedings, and six of those screens yielded positive results for illegal

       substances including THC, methamphetamine, cocaine, and fentanyl. Mother

       had four positive screens in Fall 2018.


[10]   In January 2018, the family case manager made a second referral for Mother to

       undergo a substance abuse assessment. The referral expired after several months

       due to Mother’s non-participation. Thereafter, Mother failed to maintain

       contact with her family case manager until August 2018 when Mother texted

       her case manager to inform him that she had housing. Her case manager

       requested her address, but Mother failed to respond for approximately two

       weeks. On September 5, 2018, Mother provided her address to her case

       manager. Since that date she has maintained fairly consistent communication

       with her case manager.


[11]   On September 5, 2018, DCS filed a petition to terminate Mother’s parental

       rights to G.C.1 At the January 17, 2019 fact-finding hearing, Mother admitted




       1
           Shortly thereafter, G.C.’s father filed a consent to her adoption by her maternal great grandmother.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-935 | October 16, 2019                     Page 4 of 10
       that there was still an active felony warrant for her arrest in Marion County for

       theft charges, which will likely result in her incarceration. Tr. p. 52; Ex. Vol.,

       Ex. 15 p. 52. But she also testified that she has had stable housing for over six

       months and stable employment for three months.


[12]   The Court-Appointed Special Advocate (“CASA”) believed that termination of

       Mother’s parental rights was in G.C.’s best interest. The CASA noted Mother’s

       failure to participate in services and failure to appear at hearings on dates when

       she was not incarcerated. The CASA expressed concern that Mother had not

       addressed her substance abuse issues. The CASA noted Mother’s positive drug

       screens in December 2018, just a few weeks before the fact-finding hearing.

[13]   On April 7, 2019, the trial court issued an order terminating Mother’s parental

       rights to G.C. The court acknowledged the recent housing and employment

       improvements Mother had made. However, the court determined that

       “Mother’s criminal history, substance abuse, failure to provide support,

       [historical] lack of adequate housing and employment are all factors that

       support termination of Mother’s parental rights.” Appellant’s App. p. 25.

       Furthermore,

               There is a reasonable probability that the conditions that resulted
               in the child’s removal and continued placement outside of the
               home will not be remedied. Throughout the duration of the
               CHINS case, Mother either failed to participate in or benefit
               from services ordered in the Dispositional Decree. Although
               Mother was intermittently incarcerated throughout the CHINS
               case, she did not avail herself of services during periods when she
               was not incarcerated that could have assisted her. Mother did not

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-935 | October 16, 2019   Page 5 of 10
                 maintain communication with DCS and has not demonstrated
                 that she has addressed her substance abuse or pattern of criminal
                 behavior. DCS has presented clear and convincing evidence upon
                 which the court can reasonably conclude that Mother has not
                 remedied the conditions that resulted in the child’s removal.


       Id. The trial court also concluded that termination of Mother’s parental rights

       was in G.C.’s best interest. Mother now appeals.


                                      Discussion and Decision
[14]   Mother argues that DCS failed to present clear and convincing evidence

       sufficient to support the termination of her parental rights to G.C. The

       controlling statute provides that a petition to terminate parental rights must

       allege:

                     (B) that one (1) of the following is true:
                          (i) There is a reasonable probability that the conditions
                          that resulted in the child’s removal or the reasons for
                          placement outside the home of the parents will not be
                          remedied.
                          (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).


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-935 | October 16, 2019   Page 6 of 10
[15]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana

       Code section 4(b)(2)(B) is written in the disjunctive, the trial court is required to

       find that only one prong has been established by clear and convincing evidence.

       In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). Clear and convincing

       evidence need not establish that the continued custody of the parent is wholly

       inadequate for the child’s very survival. Bester v. Lake Cty. Office of Family &

       Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient to show by

       clear and convincing evidence that the child’s emotional and physical

       development are put at risk by the parent’s custody. Id. If the court finds the

       allegations in a petition are true, the court shall terminate the parent-child

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

[16]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility, and we

       consider only the evidence and reasonable inferences favorable to the trial

       court’s judgment. Id. 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. Clear error is that which leaves us

       with a definite and firm conviction that a mistake has been made. J.M. v. Marion

       Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.

       denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-935 | October 16, 2019   Page 7 of 10
[17]   We have also often noted that the purpose of terminating parental rights is not

       to punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874, 880

       (Ind. Ct. App. 2004). Although parental rights have a constitutional dimension,

       the law allows for their termination when clear and convincing evidence

       establishes that they are unable or unwilling to meet their responsibilities as

       parents. Id. Thus, parental interests must be subordinated to the children’s

       interests in determining the proper disposition of a petition to terminate

       parental rights. G.Y., 904 N.E.2d at 1259.


[18]   Here, the trial court concluded that there was a reasonable probability that the

       conditions that resulted in G.C.’s removal from Mother’s care, or the reasons

       for placement outside her home, would not be remedied. In its consideration of

       this statutory factor, the trial court must determine a parent’s fitness to care for

       the child at the time of the termination hearing while also taking into

       consideration evidence of changed circumstances. A.D.S. v. Ind. Dep’t of Child

       Servs., 987 N.E.2d 1150, 1156–57 (Ind. Ct. App. 2013), trans. denied. The trial

       court may disregard efforts made only shortly before termination and give more

       weight to a parent’s history of conduct prior to those efforts. In re K.T.K., 989

       N.E.2d 1225, 1234 (Ind. 2013).

[19]   Here, all of Mother’s efforts to improve her ability to care for G.C. were made

       in the four months leading up to the termination hearing. From September 2018

       to January 2019, Mother maintained contact with her family case manager,

       found stable housing, and was employed for three months prior to the

       termination hearing.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-935 | October 16, 2019   Page 8 of 10
[20]   However, Mother has not addressed her substance abuse issues and continued

       to test positive for illegal substances in the weeks leading up to the fact-finding

       hearing. Mother has an outstanding felony warrant out for her arrest. And

       Mother admitted that she will likely be incarcerated again as a result of those

       pending felony charges. Mother was incarcerated for nearly a year in 2017

       during the CHINS proceedings. In 2016, Mother was incarcerated on five

       occasions. During the period that she was not incarcerated during the CHINS

       proceedings, Mother failed to maintain contact with her family case manager,

       failed to engage in services, and failed to appear at two CHINS hearings.2


[21]   Mother has not demonstrated that she is able to lead a law-abiding life or

       refrain from use of illegal substances. She not taken any steps to address her

       substance abuse. Moreover, Mother, by her own admission, will likely be

       incarcerated again due to the pending felony charges in Marion County. G.C.

       needs a safe, stable, and permanent environment in which to grow and thrive.




       2
         Mother attempts to analogize her circumstances to those in K.E. v. Indiana Department of Child Services, 39
       N.E.3d 641 (Ind. 2015). In K.E., as a result of Father’s incarceration, the trial court granted DCS’s petition to
       terminate his parental rights. On appeal, our supreme court reiterated that “incarceration is an insufficient
       basis for terminating parental rights.” Id. at 643 (citing In re G.Y., 904 N.E.2d at 1264–66). And the court
       reversed the trial court’s order terminating Father’s parental rights because “Father made extensive efforts to
       better himself by learning parenting skills, addressing his problems with substance abuse, and establishing a
       bond with both of his children.” Id. at 643-44. In addition, the CASA recommended delaying termination of
       Father’s parental rights.
       The only similarity between K.E. and this instant case is the bond that Mother has with G.C. Unlike the
       Father in K.E., Mother failed to participate in services even when she was not incarcerated, failed to maintain
       contact with her family case manager, failed to address her substance abuse problems, and failed to attend
       hearings in the CHINS proceedings. Mother complains that she was not offered services such as a mental
       health assessment or counseling, but those services were not made available because she did not cooperate
       with DCS.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-935 | October 16, 2019                     Page 9 of 10
       Mother has not demonstrated that she is able to provide G.C. with a stable and

       secure home. For all of these reasons, we conclude that the trial court’s finding

       that there was a reasonable probability that the conditions that resulted in

       G.C.’s removal from Mother’s care, or the reasons for placement outside her

       home, would not be remedied is supported by clear and convincing evidence.3


[22]   We therefore affirm the trial court’s order terminating Mother’s parental rights

       to G.C.


[23]   Affirmed.


       Robb, J., and Pyle, J., concur.




       3
        Mother also argues that DCS failed to prove all of the statutory factors listed in Indiana Code section 31-35-
       2-4(b)(2)(B)(ii) and (iii). But the trial court is required to find that only one prong of that subsection has been
       established by clear and convincing evidence. In re A.K., 924 N.E.2d at 220. We also note that Mother does
       not challenge the trial court’s conclusion that termination of her parental rights was in G.C.’s best interest.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-935 | October 16, 2019                      Page 10 of 10
