MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  May 22 2020, 9:00 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            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
Kimberly A. Jackson                                      Robert J. Henke
Indianapolis, Indiana                                    Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         May 22, 2020
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of E.B. (Minor Child)                       19A-JT-2287
      and                                                Appeal from the Clay Circuit
                                                         Court
D.B. (Father),
                                                         The Honorable Joseph D. Trout,
Appellant-Respondent,                                    Judge

        v.                                               Trial Court Cause No.
                                                         11C01-1812-JT-343

The Indiana Department of Child
Services,
Appellee-Petitioner.



Bailey, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020                    Page 1 of 17
                                             Case Summary
[1]   D.B. (“Father”) appeals the trial court’s judgment terminating his parental

      rights to his child, E.B. (“Child”). He raises two issues on appeal, which we

      consolidate and restate as whether the trial court clearly erred when it

      terminated his parental rights.


[2]   We affirm.



                              Facts and Procedural History
[3]   Father and A.L. (“Mother”)1 (collectively, “Parents”) are the parents of E.B.,

      who was born on October 11, 2015. On September 28, 2016, the Indiana

      Department of Child Services (“DCS”) received a report alleging that Parents

      were using illegal drugs, that there was domestic violence in their home, and

      that the home had been recently raided by the police due to child pornography

      concerns. The allegations regarding Parents’ use of illegal drugs was

      substantiated, but the other allegations were not.


[4]   On November 21, 2016, the court approved a program of informal adjustment

      (“IA”) for Parents and subsequently referred Parents to case management

      services and a substance abuse assessment. Child remained in the home with

      Mother, but Father was incarcerated from November 11, 2016, to December 5,




      1
        Mother agreed to a voluntary termination of her parental rights and does not actively participate in this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020                       Page 2 of 17
      2016, and from January 16, 2017, until March 31, 2017. The court in Father’s

      criminal case ordered him to go to Freebirds Solution Center (“Freebirds”) for

      substance abuse treatment, which DCS considered to satisfy the IA.


[5]   On March 15, 2017, DCS received a report that the Indiana State Police again

      were conducting a raid at Parents’ home due to reports of child pornography.

      The police found drug paraphernalia in the home and within reach of Child.

      DCS created a safety plan with Mother under which she would not allow Child

      to be in the care of Maternal Grandmother because some of the drug

      paraphernalia belonged to Maternal Grandmother. However, on March 17,

      2017, DCS learned that Mother allowed Maternal Grandmother to watch Child

      while Mother was working; therefore, DCS removed Child from the home that

      day and the IA was terminated.


[6]   On March 20, DCS filed a petition alleging Child was a child in need of

      services (“CHINS”) because during the IA: Father was arrested twice; Parents

      continued to test positive for drugs; the Indiana State Police executed a search

      warrant of the home in which Child was living and found methamphetamine in

      Maternal Grandmother’s bedroom and a “marijuana glass smoking pipe and

      two (2) small marijuana roaches in the mother and child’s bedroom[;]” Mother

      allowed Child to be cared for by Maternal Grandmother despite knowing the

      latter was using methamphetamine; and Father was in jail for possession of a

      controlled substance, theft, and fraud. Ex. Vol. VI at 19. On March 21,

      detention and initial hearings were conducted as to Mother, and Mother

      admitted to the allegations in the CHINS petition. On April 4, an initial

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 3 of 17
      hearing was conducted as to Father, who also admitted to the allegations in the

      CHINS petition. Specifically, Father admitted that, during the IA, he

      continued to test positive for marijuana, was incarcerated twice due to testing

      positive for drugs in violation of probation terms, and resided at a sober living

      facility. He also admitted that services were necessary to address his substance

      abuse issues. Child was adjudicated to be a CHINS.


[7]   On April 18, 2017, the court held a dispositional hearing, and on April 25, the

      court entered its dispositional decree and parental participation order in which

      it ordered that Child remain in his placement with relatives and Parents

      participate in services. The court ordered Father, in pertinent part, to: obtain

      and maintain suitable, safe, and stable housing; obtain and maintain a legal and

      stable source of income; obey the law; enroll in programs recommended by the

      DCS Family Case Manager (“FCM”); complete a substance abuse assessment

      and successfully complete all treatment recommendations; refrain from the use

      of drugs; submit to random drug screens; attend all scheduled visitations; and

      provide Child with a safe and secure environment that can be “provided on a

      long-term basis to provide Child with permanency.” Ex. Vol. VI at 41.


[8]   Child has never been returned to the home of either parent. On December 20,

      2018, DCS filed a petition to terminate Parents’ parental rights. On March 19,

      May 21,2 May 29, and May 31, 2019, the court held a termination of parental




      2
          At the May 21 hearing, Mother agreed to voluntary termination of her parental rights.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020                Page 4 of 17
       rights hearing. The findings of the court were extensive and addressed Father’s

       drug use, substance abuse treatment, mental health, employment, housing,

       visitation, and general stability.


[9]    From these findings, the trial court concluded that there was a reasonable

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

       placement outside the home would not be remedied by Father; and

       continuation of the parent-child relationship posed a threat to Child. The court

       further concluded that termination of Father’s rights is in Child’s best interests,

       and DCS has a satisfactory plan for Child—i.e., adoption. On August 29, the

       trial court ordered the termination of Father’s parental rights. Father appeals

       from this order.



                                  Discussion and Decision
                                         Standard of Review
[10]   Father maintains that the trial court’s order terminating his parental rights was

       clearly erroneous. We begin our review of this issue by acknowledging that the

       traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.

       See, e.g., Z.G. v. Marion Cty. Dep’t of Child Serv. (In re C.G.), 954 N.E.2d 910, 923

       (Ind. 2011). However, a trial court must subordinate the interests of the

       parents to those of the child when evaluating the circumstances surrounding a

       termination. Schultz v. Porter Cty. Office of Family & Children (In re K.S.), 750

       N.E.2d 832, 837 (Ind. Ct. App. 2001). Although the right to raise one’s own
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 5 of 17
       child should not be terminated solely because there is a better home available

       for the child, parental rights may be terminated when a parent is unable or

       unwilling to meet his or her parental responsibilities. Id. at 836.


[11]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove, among other things:


               (A) that one (1) of the following is true:


                                                  ***


                    (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.

                                                       ***

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 6 of 17
               (C) [and] that termination is in the best interests of the child . . . .


       Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements

       of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.

       DCS’s “burden of proof in termination of parental rights cases is one of ‘clear

       and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904

       N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).


[12]   When reviewing a termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Office of

       Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

       denied. Instead, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

       court’s unique position to assess the evidence, we will set aside the court’s

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       Judy S. v. Noble Cty. Office of Family & Children (In re L.S.), 717 N.E.2d 204, 208

       (Ind. Ct. App. 1999), trans. denied.


[13]   Here, in terminating Father’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.

       2005). First, we determine whether the evidence supports the findings and,

       second, we determine whether the findings support the judgment. Id.

       “Findings are clearly erroneous only when the record contains no facts to


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 7 of 17
       support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


                   Challenge to Trial Court’s Factual Findings
                             Challenged Findings Regarding Father’s Drug Use


[14]   Father challenges trial court findings (B) (8) through (11), (19) through (22),

       (38), and (139), all of which relate to his drug use throughout the CHINS and

       termination proceedings. However, the record is replete with evidence of such

       drug use. That evidence includes DCS exhibits of positive drug screens and

       notices of probation violations due to drug use. Those exhibits show positive

       drug screens on various dates for THC, methamphetamine, amphetamine, and

       K2. The termination hearing testimony of the TOMO technician and the FCM

       and the Redwood Toxicology Laboratory reports support the findings that

       Father missed and/or refused to submit to drug screens on multiple occasions.

       And Father has admitted that he continued to use marijuana even as of the time

       of the termination hearings. Appellant’s Br. at 26 (noting Father’s “drug use” is

       “limited to marijuana”).

                       Challenged Findings Regarding Substance Abuse Treatment


[15]   Father challenges trial court findings (B) (4), (24) through (26), and (54), all of

       which relate to his substance abuse assessments and lack of compliance with

       treatments. However, there is much evidence in the record supporting the

       findings that Father failed to successfully complete substance abuse treatment as
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 8 of 17
       recommended in assessments. That evidence includes provider testimony and

       exhibits showing that Father was unsuccessfully discharged from various

       substance abuse treatment programs and continued to test positive for drug use

       throughout the CHINS and termination cases.


[16]   Father contends that the findings are not supported by the record because the

       record contains an assessment completed by Hamilton Center in January of

       2019 in which the assessor concluded he did not need treatment. However, as

       the trial court pointed out, that assessment was based upon Father’s own self-

       reporting, and Father frequently had been inconsistent and/or untruthful about

       his drug use. The court was not required to believe Father’s own self-serving

       and inconsistent statements about his drug use, and the court was permitted to

       give more weight to evidence that he does need substance abuse treatment but

       has never successfully completed such treatment. We will not reweigh the

       evidence or judge witness credibility. In re D.D., 804 N.E.2d at 265.


                          Challenged Findings Regarding Father’s Mental Health


[17]   Father challenges trial court findings (B) (39), (40), and (54) as they relate to his

       need for mental health treatment and his failure to obtain it. However, mental

       health provider testimony and documents support the court’s findings that

       Father has mental health issues for which he needs, but has failed to obtain,

       treatment. Father contends that the Hamilton Center assessment in January of

       2019 shows that he did not need further mental health treatment. But, again,

       the trial court noted that the assessment was based on Father’s self-serving and


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 9 of 17
       inconsistent statements and, therefore, did not outweigh evidence of Father’s

       need for, and failure to obtain, mental health treatment. Again, we will not

       reweigh the evidence, as Father seems to request.

                           Challenged Findings Regarding Father’s Employment


[18]   Father challenges findings (B) (72) thru (74), (86), (87), (101), and (138), all of

       which relate to his employment. Those findings state that Father failed to find

       stable employment as ordered. While the evidence shows that Father was

       frequently employed during the CHINS and termination proceedings, the

       evidence also shows that he never kept any of his nine different jobs for very

       long. Although the evidence shows Father had a job at the time of the

       termination proceedings, the testimonial and documentary evidence also shows

       that Father held the job for only six weeks, had been fired from past employers

       for excessive absenteeism and failing drug screens, was required to submit to

       random drug screens for his current employer, and was still using marijuana.

       Thus, the trial court correctly found that there was no evidence Father had

       stable employment.


                             Challenged Findings Regarding Father’s Housing


[19]   Father challenges findings (B) (35), (89), and (94) through (100), all of which

       relate to his housing. Those findings state that Father failed to maintain stable

       housing, as ordered, because his housing during the relevant time period was

       never his own housing; rather, it was always housing dependent upon other

       people and/or programs. The evidence supports that, since September of 2016,

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 10 of 17
       Father has been either incarcerated, staying at a sober living program, staying at

       a homeless shelter, or staying at unknown addresses. The evidence also shows,

       as Father points out, that at the time of the termination hearing, he had been

       living with his girlfriend (“Girlfriend”) for nine months and planned to do so

       for the indefinite future. However, the trial court found, based on Girlfriend’s

       testimony, that it was uncertain whether she would continue to allow Father to

       live with her after learning—seemingly for the first time—of Father’s continued

       drug use.


[20]   Moreover, there was testimonial and documentary evidence that: Father was on

       probation; on multiple occasions in the past Father had been incarcerated for

       violating probation by using drugs; terms of his current probation were that he

       submit to drug screens and not use drugs; and Father continued to use drugs.

       That evidence supports a reasonable inference that Father was at risk to be

       incarcerated once more for violating a term of probation by testing positive for

       drug use. The evidence supports the trial court’s findings that Father did not

       have stable housing.

                                  Challenged Findings Regarding Visitation


[21]   Father challenges findings (B) (104), (108), and (109), all of which relate to his

       visitations with Child. Those findings state that Father did not take actions

       necessary to ensure that he would have additional and/or unsupervised

       visitation with Child or that Child would get to know Girlfriend and, therefore,

       it is unknown whether Father could parent Child unsupervised. However, each


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 11 of 17
       of those findings is supported by FCM testimony. Father points out that he had

       a good and loving relationship with Child during visitations. However, that is

       merely a request that we reweigh the evidence, which we cannot do. In re D.D.,

       804 N.E.2d at 265.

                              Challenged Findings Regarding Providing Stability


[22]   Finally, Father challenges findings (B) (113), (114), (117), (118), (126), (133),

       (140) through (142), (145), and (146)3 relating to his inability to provide Child

       with necessary stability. Those findings relate to Father’s consistent illegal drug

       use, repeated probation violations and incarcerations, untreated substance

       abuse and mental health issues, and unstable housing and employment, and

       those findings are supported by both testimony and exhibits in the record as

       discussed above. Some of those findings also relate to the stability that Child’s

       foster parents have provided, and can continue to provide, to Child. And those

       findings are also supported by testimonial and documentary evidence. Father

       points to evidence that he has positive visits with Child and has never used

       drugs in Child’s presence; at the same time, Father admits drug testing shows

       he still uses marijuana, an illegal substance. We will not reweigh the evidence.

       The findings are supported by the record evidence.




       3
         Father also challenges finding 148, but that “finding” actually is a conclusion of law regarding Child’s best
       interests, which we address below.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020                      Page 12 of 17
                                          Conclusion Regarding Findings


[23]   The evidence supports the trial court’s challenged findings. Father’s

       contentions boil down to requests that we reweigh the evidence and/or judge

       witness credibility, which we will not do. In re D.D., 804 N.E.2d at 265.


       Conditions that Resulted in Child’s Removal/Continued
                    Placement Outside the Home
[24]   Father maintains that the trial court erred in finding a reasonable probability

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

       outside the home will not be remedied.4 In support, he points to evidence of his

       recent partial compliance with some of the court’s requirements, such as current

       employment and housing. However, again, Father’s arguments on appeal are

       simply requests that we reweigh the evidence, which we cannot do. See In re

       D.D., 804 N.E.2d at 265. Instead, we must determine whether the evidence

       most favorable to the judgment supports the trial court’s conclusion. Id.;

       Quillen, 671 N.E.2d at 102. In doing so, we engage in a two-step analysis. E.M.

       v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). “First, we

       identify the conditions that led to removal; and second, we determine whether

       there is a reasonable probability that those conditions will not be remedied.” Id.

       (quotations and citations omitted). In the first step, we consider not only the




       4
         Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not address Father’s
       other challenges under this subsection.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020                    Page 13 of 17
       initial reasons for removal, but also the reasons for continued placement outside

       the home. T.Q. and A.Q. v. Ind. Dep’t of Child Serv. (In re N.Q.), 996 N.E.2d 385,

       392 (Ind. Ct. App. 2013). In the second step, the trial court must judge a

       parent’s fitness to care for his or her children at the time of the termination

       hearing, taking into consideration evidence of changed conditions. In re E.M., 4

       N.E.3d at 643. However, the court must also “evaluate the parent’s habitual

       patterns of conduct to determine the probability of future neglect or deprivation

       of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind.

       Ct. App. 2008) (quotations and citations omitted); see also In re M.S., 898 N.E.2d

       307, 311 (Ind. Ct. App. 2008) (noting the “trial court need not wait until a child

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

       are permanently impaired before terminating the parent-child relationship”). In

       evaluating the parent’s habitual patterns of conduct, the court may disregard

       efforts made shortly before the termination hearing and weigh the history of the

       parent’s prior conduct more heavily. R.C. v. Ind. Dep’t of Child Serv. (In re

       K.T.K.), 989 N.E.2d 1225, 1234 (Ind. 2013). And DCS is not required to rule

       out all possibilities of change; rather, it need establish only that there is a

       reasonable probability the parent’s behavior will not change. Moore, 894

       N.E.2d at 226.


[25]   Here, Child was originally removed because Mother continued to have drugs

       and drug paraphernalia in the home and within Child’s reach, Father could not

       care for Child due to his incarceration for violating probation with positive drug

       screens, and both parents continued to test positive for illegal substances. The


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 14 of 17
       trial court did not err in concluding that there is a reasonable probability that

       the neglect would continue if Child was returned to Father’s care. As of the

       date of the termination hearing, Father continued to test positive for marijuana

       use, and it is reasonable to infer that such continued use is likely to result in

       Father being incarcerated once again. Father downplays his continued

       marijuana use, noting that such use is legal in other states. However, marijuana

       use is not legal in Indiana, and the terms of Father’s current probation are that

       he not use any illegal substances and that he submit to drug screens. Thus, the

       court reasonably inferred that Father is likely to be re-incarcerated for his illegal

       drug use, either as a violation of probation or a new crime.


[26]   The court also reasonably inferred that Father is likely to lose his current

       employment because of his continued drug use; his employer randomly tests for

       drug use, and Father admits he continues to use marijuana. The court also

       reasonably inferred, based on Girlfriend’s testimony, that Father may lose his

       housing with Girlfriend due to his continued drug use. In addition, there was

       ample evidence in the record that Father’s substance abuse problems and

       mental health issues have not been successfully treated.


[27]   Given Father’s habitual patterns of drug use resulting in incarceration and/or

       loss of employment and housing, along with evidence of his current drug use

       and precarious employment and housing, the trial court did not clearly err in

       concluding that Father has not remedied—and is not likely to remedy—the

       conditions that led to Child’s removal and continued placement outside the

       home.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 15 of 17
                                               Best Interests
[28]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and

       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       interests.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind.

       Ct. App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in

       the child’s best interests.” In re A.K., 924 N.E.2d at 224. Such evidence, “in

       addition to evidence that the conditions resulting in removal will not be

       remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests.” L.S. v. Ind. Dep’t of Child Servs. (In re

       A.D.S.), 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.


[29]   Again, Father’s contentions on this issue amount to requests that we reweigh

       the evidence, which we will not do. The evidence most favorable to the

       judgment shows that, throughout the CHINS and TPR proceedings: Father

       was repeatedly incarcerated due to his continued drug use; Father repeatedly

       tested positive for illegal drug use and/or refused to take drug screenings;

       Father did not successfully complete either substance abuse or mental health

       treatment as ordered by the court; and Father had unstable housing and

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 16 of 17
       employment. Moreover, both the FCM and CASA recommended that Father’s

       parental rights be terminated. Given that testimony, in addition to evidence

       that Child needs permanency and stability that Father cannot provide and that

       the reasons for Child’s removal from Father will not likely be remedied, we

       hold that the totality of the evidence supports the trial court’s conclusion that

       termination is in Child’s best interests. In re A.D.S., 987 N.E.2d at 1158-59.



                                               Conclusion
[30]   The evidence in the record supports the trial court’s findings of fact, and those

       findings support the trial court’s conclusion that Father’s parental rights should

       be terminated. The trial court did not commit clear error by so ruling.


[31]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2287 | May 22, 2020   Page 17 of 17
