Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                       Jul 21 2014, 9:14 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

MARK LEEMAN                                    GREGORY F. ZOELLER
Logansport, Indiana                            Attorney General of Indiana

                                               ROBERT J. HENKE
                                               CHRISTINE REDELMAN
                                               Office of Attorney General
                                               Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION               )
OF THE PARENT-CHILD RELATIONSHIP               )
OF: Z.S. (MINOR CHILD),                        )
                                               )
and                                            )
                                               )
R.S. (FATHER),                                 )
                                               )      No. 09A04-1309-JT-473
       Appellant-Respondents,                  )
                                               )
               vs.                             )
                                               )
THE INDIANA DEPARTMENT OF                      )
CHILD SERVICES,                                )
                                               )
       Appellee-Petitioner.                    )


                       APPEAL FROM THE CASS SUPERIOR COURT
                         The Honorable Richard A. Maughmer, Judge
                               Cause No. 09D02-1207-JT-34
                                      July 21, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge



                             STATEMENT OF THE CASE

      R.S. (“Father”) appeals the involuntary termination of his parental rights to his

daughter, Z.S.

      We affirm.

                                         ISSUE

      Whether the Department of Child Services (“DCS”) presented clear and
      convincing evidence to support the termination of Father’s parental rights.

                                         FACTS

      Z.S. was born on September 21, 2009. On June 20, 2011, DCS received a report

alleging that Father and Z.S.’s mother, J.S. (“Mother”), were using methamphetamine,

that they were abusing Z.S., that their home was in poor condition, and that they were not

meeting the child’s needs. A DCS worker conducted a home assessment the next day.

The worker “found no concerns at the house during the home assessment.” (Ex. Vol. II

361). Mother passed a drug screen, but Father was not available to take one at that time.

      On August 8, 2011, Father submitted a drug screen at DCS’s request and tested

positive for methamphetamine. DCS opened an In-Home Child in Need of Services

(“CHINS”) case that required Father to move out of the house. DCS investigated another

report of drug use by Mother. Mother tested positive for methamphetamine on August

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25, 2011, and DCS took Z.S. into its custody. The following day, DCS filed a petition

alleging that Z.S. was a CHINS.

          The juvenile court held an initial detention hearing on September 2, 2011. There,

Father and Mother initially denied that Z.S. was a CHINS.             Eventually, they both

admitted that Z.S. was a CHINS on October 11, 2011, and the juvenile court set the case

for a dispositional hearing. At the dispositional hearing on December 7, 2011, the

juvenile court entered its order, continuing Z.S.’s removal from her parents and ordering

them to participate in services aimed at reunification. The juvenile court ordered, in

relevant part, that Father maintain suitable employment and housing, that he refrain from

using and selling any controlled substances, that he complete a substance abuse

evaluation and participate in treatment, and that he submit to random drug screens.1

          During the CHINS proceeding, Father had attended every scheduled visit with

Z.S. However, his progress in addressing his substance abuse problem was inconsistent.

Father completed an initial substance abuse evaluation. Yet, between August 2011 and

November 2011, Father failed on two occasions to complete intensive outpatient

treatment and failed two drug screens. On November 22, 2011, Father was arrested and

charged with Class C felony possession of methamphetamine. Father posted bail and

continued with services.

          Father failed a third attempt at intensive outpatient treatment. Father was admitted

into inpatient treatment at the TARA Treatment Center (“TARA”), a drug and alcohol

treatment facility. His therapist at TARA, Antoinette Novotny (“Novotny”), stated that

1
    Mother eventually terminated her parental rights voluntarily.
                                                       3
Father completed inpatient treatment and did very well while under her care. Father did

not have any positive drug screens while at the TARA facility. Novotny did express

concerns about Father’s aftercare because he planned on “returning [to] . . . the same

triggers and same, basically, atmosphere, [and] barriers.” (Tr. 178). She also expressed

concern about Father’s views on his addiction and marijuana use. Apparently, Father did

not fully accept the possibility that continued use of marijuana was a risk for

methamphetamine relapse. TARA discharged Father successfully from their program on

March 11, 2012.

      Father tested positive for amphetamine, methamphetamine, and THC on April 16,

2012. The trial court in Father’s criminal case revoked his bond and remanded him to the

county jail on May 9, 2012. Father eventually pled guilty to Class C felony possession of

methamphetamine and was sentenced to an aggregate sentence of eight years, with six

years executed in community corrections and two years suspended to probation. On July

18, 2012, the juvenile court held a permanency hearing and changed Z.S.’s permanency

plan to adoption; DCS filed a petition to terminate Father’s parental rights shortly

thereafter. The court conducted the evidentiary hearing for DCS’s petition on July 30,

2013 and August 30, 2013.

      M.M. has been Z.S.’s foster mother for almost two years. M.M. testified that Z.S.

is bonded to her and her husband and refers to them as mom and dad. M.M. mentioned

that when Z.S. first came to her home, Z.S. had dental issues that needed to be addressed.

Z.S. had to have her four front teeth pulled because of severe bottle rot. According to

M.M., the dentist stated the bottle rot was due in part to what was in Z.S.’s bottles or

                                            4
“what might have been in the atmosphere [of her previous home].” (Tr. 210). M.M. also

expressed concerns about disciplining Z.S. and believed that once Z.S.’s placement was

finally determined, those problems could subside. Specifically, M.M. testified that Z.S.

“thinks, she thinks [sic] she gets to go and have fun every day. She thinks that she gets to

go from parent to parent to parent and get whatever she wants out of us and so she’s just

going to keep thinking that.” (Tr. 214). M.M. stated that she and her husband would

adopt Z.S. if Father’s parental rights were terminated.

       Stacy Hawkins (“Hawkins”), a therapist with Lifeline Youth and Family Services,

worked with Father and Z.S. Hawkins testified that while she observed good parenting

skills from Father, she had continued concerns about his ability to remain sober.

Specifically, she noted that because Father has a lengthy substance abuse history and that

“Work Release” was “forced sobriety,” there was a concern that he could relapse. (Tr.

49). Hawkins worked with Z.S. because she displayed confusion “with having two

Mommies and two Daddies.” (Ex. Vol. II 454). According to Hawkins, Z.S. was having

tantrums with her foster parents and would sleep in their bed because of her having

nightmares. Z.S. also would cry and beg not to go to visits with Mother and Father.

After working with Hawkins, Z.S. would voluntarily go to visits, but she always

“ensure[d] that she [would] be picked up by the foster parent or [be] returned by the visit

staff.” Id. at 455. M.M. had some success with redirecting some of Z.S.’s behavior, but

some of the techniques she learned were no longer working. Hawkins testified that

termination of Father’s parental rights would be in Z.S.’s best interests because she is

bonded to the foster parents, identifying them as “mommy and daddy.” (Tr. 35).

                                             5
       Stephanie Neher (“OCM Neher”), the ongoing case manager for DCS testified that

termination of Father’s parental rights was in Z.S.’s best interests because she has

concerns about Father’s ability to stay sober absent incarceration. In addition, OCM

Neher stated that Z.S. had been out of Father’s care for almost two years and “taking her

out of a home that she’s been in longer than she ever was with her parent[s] is not in her

best interest.” (Tr. 259).

       Dave Wegner (“Wegner”), the director of the Cass/Pulaski County Community

Corrections department, supervised Father in the work release component.          Wegner

mentioned that he had discovered incidents where Father was at unauthorized locations.

Father also violated the facility’s cell phone usage policy by altering the contents of

phone and text messages he received. Father faced an administrative hearing because of

these violations and received a written reprimand. Wegner further stated that because of

Father’s behavior in the facility at that point, they were not willing to modify him to

home detention at that time.

       Jeffery Stanton (“GAL Stanton”), the guardian ad litem, filed a report July 23,

2013 stating the following:

       On one (1) hand[,] [Father] has been reporting to DCS and has taken
       advantage of all services provided to him. He has taken steps to have [Z.S.]
       returned to him. However, all of his “steps” have been taken with [the]
       hammer of incarceration hanging over his head. Prior to his sentencing, he
       had failed to take advantage of services and continued to use [controlled
       substances]. [Z.S.] seems to have a bond with her father. On a very close
       call, I recommend against the termination of [Father’s] parental rights.

(App. 23). However, as GAL Stanton participated in the evidentiary hearing, he stated

that he was not as comfortable with the recommendation he made in his report. On one

                                            6
hand, GAL Stanton stated that he was impressed with the effort Father put forth after he

was incarcerated.     On the other hand, he was not comfortable with the fact that

community corrections was not committed to transitioning Father to home detention at

the time of the hearing. At the end of his testimony, GAL Stanton did not offer a new

recommendation.

       On September 10, 2013, the trial court entered an order terminating Father’s

parental rights.    Essentially, the trial court concluded that there was a reasonable

probability that the reasons for Z.S.’s continued placement out of Father’s care would not

be remedied and that termination of parental rights was in Z.S.’s best interests.

Specifically, the trial court found that Father did not demonstrate that he could stay sober

absent incarceration and that separating Z.S. from her foster parents after two years of

being in their care would have a negative effect on her. Father now appeals. We will

provide additional facts as necessary.

                                         DECISION

       Although parental rights are of a constitutional dimension, the law allows for

termination of these rights when parties are unable or unwilling to meet their

responsibilities. In re A.N.J., 690 N.E.2d 716, 720 (Ind. Ct. App. 1997). The purpose of

termination of parental rights is not to punish parents but to protect children. In re L.S.,

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied.

       In reviewing the termination of parental rights, we will neither reweigh the

evidence nor judge the credibility of witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind.

2010). We consider only the evidence most favorable to the judgment. Id. Where the

                                             7
trial court has entered findings of fact and conclusions of thereon, we apply a two-tiered

standard of review. Id. We must determine whether the evidence supports the findings

and then whether the findings support the judgment. Id. We will set aside a judgment

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

clearly erroneous if the findings do not support the conclusions or the conclusions do not

support the judgment. Id.

       When DCS seeks to terminate parental rights pursuant to INDIANA CODE § 31-35-

2-4(b)(2), it must plead and prove, in relevant 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 of 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 . . . .

Because subsection (b)(2)(B) is written in the disjunctive, DCS need prove only one of

the three elements by clear and convincing evidence. See Bester v. Lake Cnty Office of

Family and Children, 839 N.E.2d 143, 153 n.5 (Ind. 2005). These allegations must be


                                                8
established by clear and convincing evidence. I.A., 934 N.E.2d at 1133. If the trial court

finds the allegations in a petition described in section 4 of this chapter are true, the court

shall terminate the parent-child relationship. I.C. § 31-35-2-8(a).

1. Conditions Remedied

       Father argues that DCS did not present clear and convincing evidence that he

would relapse. We restate Father’s claim as whether the trial court erred in concluding

that there was a reasonable probability that the conditions which supported Z.S.’s

removal or continued placement outside of his care would not be remedied.

       Determining whether the conditions justifying Z.S.’s removal or continued

placement outside of Father’s home would not be remedied requires a two-step analysis.

First, we must determine what conditions led to Z.S.’s removal. In re K.T.K., 989 N.E.2d

1225, 1231 (Ind. 2013). Second, we “determine whether there is reasonable probability

that those conditions will not be remedied.” I.A., 934 N.E.2d at 1134. The trial court

must judge a parent’s fitness to care for the child at the time of the termination hearing,

taking into consideration any evidence of changed conditions. A.N.J., 690 N.E.2d at 721.

The trial court must also evaluate the parent’s habitual pattern of conduct to determine

whether there is a substantial probability of future neglect or deprivation. Id. A trial

court may properly consider evidence of a parent’s prior criminal history, drug and

alcohol abuse, history of neglect, failure to provide support, and lack of adequate

employment and housing. McBride v. Monroe Cnty Office of Family and Children, 798

N.E.2d 185, 199 (Ind. Ct. App. 1999). Additionally, the trial court can properly consider

the services offered by DCS to the parent and the parent’s response to those services as

                                              9
evidence of whether conditions will be remedied. Id. “DCS need not rule out all

possibilities of change; rather, DCS need establish only that there is a reasonable

probability that the parent’s behavior will not change.” In re Kay.L., 867 N.E.2d 236,

242 (Ind. Ct. App. 2007).

       Here, we find that the trial court did not err in concluding that the reasons for

Z.S.’s continued placement outside of the home would not be remedied.                     We

acknowledge that at the time of the termination hearing, Father had been sober for over a

year. However, this was mainly because of Father’s incarceration. During the CHINS

proceeding, Father had five positive drug screens. Father failed outpatient substance

abuse treatment three times.      Father did complete a twenty-day intensive inpatient

substance abuse program on March 11, 2012.                Yet, Father tested positive for

methamphetamine a month after being discharged and was arrested for possession of

methamphetamine two months later. In addition, Father’s inpatient treatment coordinator

expressed concern about Father returning to the same people and places that served as

triggers for his methamphetamine use. She also testified that Father did not appreciate

the risk that marijuana usage can cause a methamphetamine relapse. This evidence

supports the juvenile’s court’s conclusion that Father could not remain sober absent

incarceration and is sufficient to determine that a reasonable probability that the

conditions for Z.S.’s continued placement outside of the home would not be remedied.

2. Best Interests

       For the “best interests of the child” statutory element, the trial court is required to

consider the totality of the evidence and determine whether the custody by the parent is

                                             10
wholly inadequate for the child’s future physical, mental, and social growth. In re A.K.,

924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.               In making this

determination, the trial court must subordinate the interest of the parent to that of the

child involved. Id. The recommendations of the service providers that parental rights be

terminated support a finding that termination is in the child’s best interests. See A.J. v.

Marion Cnty. Office of Family and Children, 881 N.E.2d 706, 718 (Ind. Ct. App. 2008),

trans. denied.

       Father argues that DCS did not present clear and convincing evidence that

terminating his parental rights was in Z.S.’s best interests. Father compares his case to In

re G.Y., 904 N.E.2d 1257 (Ind. 2009), In re J.M., 908 N.E.2d 191 (Ind. 2009), and H.G.

v. Indiana Dep’t. of Child Services, 959 N.E.2d 272 (Ind. Ct. App. 2011) wherein our

Indiana Supreme Court and this Court held that termination of parental rights was not in

the best interests of the children involved. We distinguish Father’s case from these

previous opinions.

       The parents involved in the cases cited by Father made progress with their

respective issues during the CHINS process. In addition, for the parents that were

incarcerated, their release was imminent. Here, after the CHINS dispositional hearing,

Father was ordered to, among other things, maintain suitable and stable housing,

complete an intensive outpatient program, refrain from using illegal controlled substances

and submit to random drug screens.         As previously stated, Father failed intensive

outpatient treatment and tested positive for controlled substances five times. Father did

complete an inpatient treatment program but relapsed one month after being discharged

                                            11
by testing positive for methamphetamine. Two months after his discharge from inpatient

therapy, Father was arrested and convicted of possession of methamphetamine.          In

addition, at the time of the hearing, Father had received several warnings that his

performance in regards to the rules and regulations on work release placed him in danger

of being revoked. Community Corrections was unwilling to commit to a date for Father

to transition to home detention. With these facts, Father’s reliance on G.Y., J.M., and

H.G. fails.

       Turning to the evidence, OCM Neher testified that termination was in Z.S.’s best

interest because Z.S. needed a stable home and permanency that Father could not

provide. M.M. essentially testified that a sense of permanency for Z.S. would help in

curbing discipline problems she and her husband were experiencing with Z.S. Four-year-

old Z.S. has lived with her foster family for half of her young life. As our Indiana

Supreme Court has stated, “children cannot wait indefinitely for their parents to work

toward preservation or reunification—and courts ‘need not wait until the child is

irreversibly harmed such that the child’s physical, mental and social development is

permanently impaired before terminating the parent-child relationship.’” In re E.M., 4

N.E.3d. 636, 647 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1235). This is especially

true for children as young as Z.S.

       Most importantly, we note that GAL Stanton originally recommended against

terminating Father’s parental rights in his report. However, after participating in the

termination hearing, he withdrew his initial recommendation and made no further

recommendation.     Given Father’s demonstrated inability to maintain sobriety absent

                                          12
incarceration and the testimony of the service providers, the juvenile court’s decision was

not clearly erroneous. See e.g., Prince v. Dep’t of Child Services, 861 N.E.2d 1223, 1231

(Ind. Ct. App. 2007) (termination of parental rights was in child’s best interests where

parent failed to demonstrate she could remain sober absent compulsion from court).

       Affirmed.

FRIEDLANDER, J., and MATHIAS, J., concur.




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