MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Mar 16 2018, 9:04 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
Nancy A. McCaslin                                        Curtis T. Hill, Jr.
McCaslin & McCaslin                                      Attorney General of Indiana
Elkhart, Indiana
                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Termination of the                            March 16, 2018
Parent/Child Relationship of                             Court of Appeals Case No.
Mak.B and Mar.B;                                         20A04-1709-JT-2154
                                                         Appeal from the Elkhart Circuit
                                                         Court
D.C. (Mother),
                                                         The Honorable Michael A.
Appellant-Defendant,                                     Christofeno, Judge

        v.                                               The Honorable Deborah A.
                                                         Domine, Magistrate
                                                         Trial Court Cause Nos.
Indiana Department of Child
                                                         20C01-1701-JT-1
Services,                                                20C01-1701-JT-2
Appellee-Plaintiff.



Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018            Page 1 of 10
                                             Statement of the Case
[1]   D.C. (“Mother”) appeals the termination of the parent-child relationship with

      her children, Mak.B. (“Mak.B.”) and Mar.B. (“Mar.B.”) (collectively “the

      children”), claiming that the Department of Child Services (“DCS”) failed to

      prove by clear and convincing evidence that: (1) there is a reasonable

      probability that the conditions that resulted in the children’s removal or the

      reasons for placement outside Mother’s home will not be remedied; (2) a

      continuation of the parent-child relationship poses a threat to the children’s

      well-being; and (3) termination of the parent-child relationship is in the

      children’s best interests. Concluding that there is sufficient evidence to support

      the trial court’s decision to terminate the parent-child relationship, we affirm

      the trial court’s judgment.1


[2]   We affirm.


                                                             Issue
                 Whether there is sufficient evidence to support the involuntary
                 termination of Mother’s parental rights.


                                                             Facts
[3]   Mother is the parent of two daughters, Mak.B., who was born in January 2010,

      and Mar.B., who was born in January 2011. In August 2015, Mother and her




      1
          The children’s father voluntarily relinquished his parental rights and is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018                   Page 2 of 10
      boyfriend became involved in a physical altercation as they were driving. The

      children were in the back seat. A police officer who happened to be driving

      behind their car saw the fight and was getting ready to pull them over when

      their car crashed into another vehicle. The officer approached the car and

      noticed methamphetamine pipes within the children’s reach as well as coffee

      filters with methamphetamine residue and oxycodone pills. Mother was

      arrested for domestic battery in the presence of a child, and the children were

      placed in foster care.


[4]   The children were adjudicated to be CHINS in September 2015, and Mother

      was court-ordered to: (1) complete a domestic violence assessment and follow

      all recommendations; (2) attend supervised visits with the children; (3)

      complete a drug and alcohol assessment and follow all recommendations; (4)

      remain drug fee and submit random urine drug screens; (5) complete a

      psychological assessment; and (6) obtain and maintain stable employment and

      housing. DCS also offered Mother home-based case management services,

      individual therapy, and a medication evaluation.


[5]   When Mother failed to comply with the court’s orders, DCS filed a petition to

      terminate her parental rights in January 2017. Testimony at the May 2017

      termination hearing revealed that Mother had completed a domestic violence

      assessment but had failed to follow recommendations. Mother had also

      completed a drug and alcohol assessment and intensive outpatient program but

      had failed to complete the aftercare program. Her visits with her children had

      been inconsistent, and she had attended only twenty of fifty-five scheduled

      Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018   Page 3 of 10
      visits. She had failed more than half of her urine drug screens and was arrested

      for the possession and use of drugs. She had been twice incarcerated in 2016.

      During the pendency of the CHINS proceedings, Mother had given birth in

      February 2016 to a son that had multiple drugs, including methamphetamine,

      in his system. At the time of the hearing Mother was pregnant with her fourth

      child. She had been “on the run” avoiding arrest from October 2016 until

      January 2017 when she turned herself in and was incarcerated. (Tr. 134).

      Mother had never obtained stable housing or employment.


[6]   When asked whether the conditions that had resulted in the children’s removal

      had been remedied, DCS Family Case Manager Laura Stapleton (“Case

      Manager Stapleton”) responded:


              No. . . . Because it’s been the history that [Mother] is
              incarcerated, then she gets out, and she does well for a month or
              two. And then she tests positive again and she breaks probation
              and then she’s on the run, and the - - it’s just been up and down
              with the kids, and I don’t foresee that stopping.


      (Tr. 134). Case Manager Stapleton further explained that the children, who

      were then six and seven years old, were in foster care with relatives that

      planned to adopt them and that the children had “made it clear that they [did

      not] want to see [Mother] again. They’re happy where they’re at; they call the

      foster parents Mom and Dad . . . .” (Tr. 138). According to Case Manager

      Stapleton, termination was in the children’s best interests.




      Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018   Page 4 of 10
[7]   The children’s therapist, Kami Brenneman, testified that the children were

      “extremely happy” and were “in a very stable situation.” (Tr. 183). CASA

      Jean Rupp (“CASA Rupp”) testified that the children were “doing absolutely

      fantastic.” (Tr. 194). They were extremely happy and excelling in school.

      According to CASA Rupp, termination was in the children’s best interests

      because “they deserve the life that they have right now, and I can see great

      things for these children in . . . the future. I think if this adoption were to fall

      through, it would put these kids over the edge.” (Tr. 197).


[8]   At the end of the hearing, the trial court noted that the children had “been in

      limbo waiting for about a third of their lives . . . .” (Tr. 217). Two days after

      the hearing, the trial court issued a detailed order terminating Mother’s parental

      rights. Mother now appeals the termination.


                                                  Decision
[9]   Mother argues that there is insufficient evidence to support the termination of

      her parental rights. The Fourteenth Amendment to the United States

      Constitution protects the traditional right of parents to establish a home and

      raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,

      the law provides for termination of that right when parents are unwilling or

      unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147

      (Ind. 2005). The purpose of terminating parental rights is not to punish the

      parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

      App. 1999), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018   Page 5 of 10
[10]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[11]   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.



       Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018   Page 6 of 10
       IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[12]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she contends that the evidence

       is insufficient to show that there is a reasonable probability that: (1) the

       conditions that resulted in the children’s removal or the reasons for placement

       outside Mother’s home will not be remedied; and (2) a continuation of the

       parent-child relationship poses a threat to the children’s well-being.


[13]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in the children’s

       removal or the reasons for their placement outside Mother’s home will not be

       remedied.


[14]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine 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


       Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018   Page 7 of 10
       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. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).

       The trial court may also consider services offered to the parent by DCS and the

       parent’s response to those services as evidence of whether conditions will be

       remedied. Id. Requiring trial courts to give due regard to changed conditions

       does not preclude them from finding that a parent’s past behavior is the best

       predictor of her future behavior. E.M., 4 N.E.3d at 643.


[15]   Here, the children were removed from Mother’s home because of domestic

       violence and Mother’s drug use. Our review of the evidence reveals that at the

       time of the termination hearing, Mother had not followed the recommendations

       of either the domestic violence or drug and alcohol assessments. Rather, during

       the pendency of the CHINS proceeding, Mother had continued to use drugs,

       including methamphetamine, and had been incarcerated more than once. She

       had also given birth to a third child that had drugs in his system. This evidence

       supports the trial court’s conclusion that there was a reasonable probability that

       the conditions that resulted in the children’s removal would not be remedied.

       We find no error.


[16]   Mother also argues that there is insufficient evidence that the termination was

       in the children’s best interests. In determining whether termination of parental

       Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018   Page 8 of 10
       rights is in the best interests of a child, the trial court is required to look at the

       totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

       trans. denied. In so doing, the court must subordinate the interests of the parents

       to those of the child involved. Id. Termination of the parent-child relationship

       is proper where the child’s emotional and physical development is threatened.

       In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘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

       continuation of the parent-child relationship is contrary to the child’s best

       interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

       Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

       denied, superseded by rule on other grounds). Further, the testimony of the service

       providers may support a finding that termination is in the child’s best interests.

       McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

       Ct. App. 2003).


[17]   Here, our review of the evidence reveals that Mother has historically been

       unable to provide stability and supervision for her children and was unable to

       provide the same at the time of the termination hearing. In addition, Case

       Manager Stapleton and CASA Rupp testified that termination was in the

       children’s best interests. The testimony of these service providers, as well as the

       other evidence previously discussed, supports the trial court’s conclusion that

       termination was in the children’s best interests. There is sufficient evidence to

       support the terminations.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018   Page 9 of 10
[18]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018   Page 10 of 10
