MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Oct 19 2016, 7:14 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
Jennifer L. Schrontz                                      Gregory F. Zoeller
Lafayette, Indiana                                        Attorney General of Indiana

                                                          Robert J. Henke
                                                          Deputy Attorney General

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

E.F.,                                                     October 19, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A02-1602-JT-444
        v.                                                Appeal from the Tippecanoe
                                                          County Superior Court
Indiana Department of Child                               The Honorable Faith A. Graham,
Services,                                                 Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          79D03-1508-JT-67



Altice, Judge.


                                          Case Summary
Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016      Page 1 of 16
[1]   E.F. (Mother) appeals the involuntary termination of her parental rights (TPR)

      to K.S.F. (Child). Mother challenges the sufficiency of the evidence supporting

      the termination.


[2]   We affirm.


                                            Facts & Procedural History


[3]   Mother began using opiates when she was twenty years old and heroin when

      she was twenty-one. On March 9, 2014, Mother, then twenty-two years old,

      gave birth to Child. The Tippecanoe County Department of Child Services

      (DCS) became involved with Mother that same day upon receiving a report of

      neglect from the hospital.


[4]   On April 7, 2014, DCS filed a child in need of services (CHINS) petition

      alleging that Child was born with opiates in her system.1 Further investigation

      revealed that Mother reported to nursing staff that she was unaware that she

      was pregnant, that she received no prenatal care, that she admitted to using

      heroin two to three times a week during the eight months preceding Child’s

      birth, and that she most recently used heroin two days prior to Child’s birth.

      Indeed, Child’s meconium tested positive for opiates. At one day old, Child

      began displaying signs of heroin withdrawal, including seizures, tremors, lack

      of sleep, sneezing, and scratching at herself, for which Child had to be treated




      1
       See Ind. Code § 31-34-1-10(1) (“a child is a child in need of services if . . . the child is born with . . . any
      amount, including a trace amount, of a controlled substance or a legend drug in the child’s body”).

      Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016                   Page 2 of 16
      with morphine. Although Mother identified who she thought was Child’s

      father, DNA testing revealed that another individual, D.H., was actually

      Child’s biological father.2


[5]   At an initial hearing, the court authorized the continued removal of Child from

      Mother’s care. Child remained hospitalized for two months following her birth.

      Upon her release, Child was placed in foster care, where she remained

      throughout these proceedings.


[6]   At a May 5, 2014 fact-finding hearing, Mother admitted to the allegations and

      factual circumstances set forth in the CHINS petition and the court adjudicated

      Child a CHINS. The court held a dispositional hearing on June 4, 2014, and

      thereafter entered its dispositional decree ordering Mother to participate in

      services.


[7]   The eighteen months between Child’s birth and the termination hearing can be

      divided into three distinct, six-month periods. During the first six months after

      Child was born, Mother’s participation in services was sporadic. She was

      ultimately discharged for failure to participate. Further, Mother twice admitted

      herself into the Salvation Army Harbor Lights (Harbor Lights) rehabilitation

      facility, but she failed to complete the initial stages of the program and each

      time she returned to using heroin. She also failed to maintain regular visits with




      2
        D.H. also had his parental rights terminated, but he does not participate in this appeal. We will confine the
      facts and our discussion to that which is relevant to Mother.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016             Page 3 of 16
      Child. In fact, Mother would disappear for short periods as she continued to

      struggle with her heroin addiction. During this time, Mother tested positive for

      opiates on at least twenty-eight occasions.


[8]   In October 2014, the beginning of the second six-month period, Mother entered

      the Harbor Lights rehabilitation facility for a third time. This time Mother

      successfully completed the detox and residential programs and followed up with

      an intensive outpatient program (IOP) through Wabash Valley Alliance

      (WVA). After completing the IOP, Mother went through sixteen weeks of

      relapse prevention. She did not, however, follow through with the

      recommended social support group through WVA, but rather chose to attend

      narcotics anonymous (NA).


[9]   Additionally, during this six-month timeframe, Mother participated in and was

      receptive to some of the services offered by DCS, actively and appropriately

      interacted with Child during visits, obtained full-time employment and an

      apartment, and her drug-screens were clean. Mother also engaged in case

      management services. Individuals assigned to work with Mother and Child,

      including the Family Case Manager (FCM) and Court Appointed Special

      Advocate (CASA), described Mother as making “tremendous progress” and

      noted that the goal was reunification of Mother and Child. Transcript at 6. In

      fact, near the end of this six-month period, service providers were considering

      arranging an in-home visit between Mother and Child.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 4 of 16
[10]   The in-home visit, however, never occurred because beginning in March 2015

       (the third six-month period), Mother’s participation in services started to

       decline. First, Mother failed to show for a therapy session. Shortly thereafter,

       on March 21, 2015, Mother was called for a drug screen, but was unable to

       produce a specimen. Over the course of the next few months, Mother failed to

       report for six additional drug screens, giving various reasons or wholly failing to

       communicate. In May, Mother had two positive drug screens and admitted to

       service providers that she had a relapse and had used spice. The FCM, CASA,

       and others talked with Mother about how to get back on track and referred her

       back to WVA for relapse prevention. Mother did not follow through with

       services at WVA, but rather claimed that she was attending NA meetings

       several times a month as her relapse prevention. Mother could not, however,

       produce any documentation to support her claim that she was attending NA

       meetings.


[11]   Mother also failed to attend a scheduled appointment for case management

       services on February 20 and again on March 30, 2015. Mother was then placed

       under a no tolerance policy, but nevertheless missed a scheduled appointment

       in May 2015. In May, the case management service provider reported that

       although Mother had made progress initially, the case had “taken a significant

       downturn.” Exhibit 4 at 70. The service provider noted that Mother had

       “demonstrated that she is unable to save and budget her money despite

       continued pressure and persistence” and that she “does not have the time to

       manage the daily responsibilities of being a full time parent.” Exhibit 4 at 70.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 5 of 16
       Mother was eventually terminated from case management services for failure to

       participate.


[12]   With regard to Mother’s housing situation, the case management service

       provider noted that Mother’s “stability and ability to even keep her home is in

       question from month to month.” Id. Initially, Mother received government

       assistance. When it was discovered that Mother had falsified on her housing

       application that Child was in her care and that Mother had failed to inform the

       apartment complex that she had obtained employment, Mother’s rent payment

       increased. Although Mother had been living in the same apartment since

       September 2014, she received an eviction notice in May 2015 based on her

       failure to pay rent for April and May. With help from family members, Mother

       was able to pay the back rent and avoid eviction, but she “fell short with other

       bills” and had her electricity shut off for six days. Transcript at 218.


[13]   At the time of the termination hearing, Mother remained employed. Mother,

       however, had lost her driver’s license for failing to pay “a judgment on an

       accident without insurance”, but nevertheless continued to drive without a

       license. Id. at 227.


[14]   Mother’s visitation with Child similarly declined. In April, Mother was late

       cancelling a visit with Child, arrived at another visit without diapers, and ended

       another visit forty-five minutes early. On May 5, 2015, Mother failed to show

       for her scheduled visit with child. Two days later, Mother failed to confirm her

       visit with Child and was therefore considered a “no show”. During a visit in


       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 6 of 16
       September 2015, at which Mother and paternal grandparents were present,

       Mother became angry and started screaming at a supervisor. Mother was asked

       to leave and informed that the police would be called. As Mother left, she

       continued screaming and making a scene. The police arrived and escorted

       everyone out of the facility. Mother’s visitation was thereafter suspended due

       to inappropriate behavior in the presence of Child.


[15]   In June 2015, after Mother’s participation in services started to decline, DCS

       requested that the permanency plan be changed to concurrent plans of

       reunification of Mother and Child and initiation of TPR proceedings.

       Eventually, on August 5, 2015, the permanency plan for Child was changed

       when DCS filed a verified TPR petition. The court held a TPR hearing on

       October 26, 2015, at which service providers and Mother testified. On

       February 8, 2016, the court entered its order, along with findings of fact and

       conclusions of law, granting the TPR petition. Mother now appeals.

       Additional facts will be provided where necessary.


                                           Discussion & Decision


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

       evidence or judge the credibility of the witnesses. 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 most favorable to the judgment. Id. In deference to

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

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


       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 7 of 16
       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[17]   The trial court entered findings in its order terminating Mother’s parental

       rights. When the trial court enters specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. 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 support them either directly or by

       inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is

       clearly erroneous only if the findings do not support the court’s conclusions or

       the conclusions do not support the judgment thereon. Id.


[18]   We recognize 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.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

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

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 8 of 16
[19]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:


               (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[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child, I.C. § 31-35-2-

       4(b)(2)(C), and that there is a satisfactory plan for the care and treatment of the

       child. I.C. § 31-35-2-4(b)(2)(D).


[20]   Here, the trial court concluded that DCS established that I.C. § 31-35-2-

       4(b)(2)(B)(i) and (ii) had been satisfied. Mother challenges both conclusions.

       Because I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive, we need only

       conclude that the trial court properly determined one of the conditions therein

       had been met. See In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). With

       respect to (i), the court noted: “Neither parent has demonstrated the ability or

       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 9 of 16
       willingness to make lasting changes from past behaviors. There is no

       reasonable probability that either parent will be able to maintain sobriety and

       stability in order to care and provide adequately for [Child].” Appellant’s

       Appendix at 15.


[21]   In determining whether there is a reasonable probability that the conditions that

       led to a child’s removal and continued placement outside the home will be

       remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

       989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what conditions

       led to the child’s placement and retention in foster care, and, second, we

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. In the second step, the trial court must judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing a parent’s recent improvements

       against “‘habitual pattern[s] of conduct to determine whether there is a

       substantial probability of future neglect or deprivation.’” In re E.M., 4 N.E.3d

       636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this

       rule, “trial courts have properly considered evidence of a parent’s prior criminal

       history, drug and alcohol abuse, history of neglect, failure to provide support,

       and lack of adequate housing and employment.” A.F. v. Marion Cnty. Office of

       Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.


[22]   In addition, DCS need not provide evidence ruling out all possibilities of

       change; rather, it need establish only that there is a reasonable probability the

       parent’s behavior will not change. In re Involuntary Termination of Parent-Child

       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 10 of 16
       Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust

       that delicate balance to the trial court, which has discretion to weigh a parent’s

       prior history more heavily than efforts made only shortly before termination.”

       In re E.M., 4 N.E.3d at 643. Although trial courts are required to give due

       regard to changed conditions, this does not preclude them from finding that a

       parent’s past behavior is the best predictor of their future behavior. Id.


[23]   We first address Mother’s challenges to several of the court’s findings. Mother

       challenges Finding 22 wherein the court noted that “[n]either parent has

       followed recommendations for ongoing substance abuse support groups.”

       Appellant’s Appendix at 14. Mother asserts that this finding is erroneous and

       directs us to evidence that she completed a rehabilitation program and followed

       through with an IOP. Mother also points to her testimony that she attended

       weekly NA meetings since April 2015. Mother’s testimony, however, is

       contrary to other evidence in the record. Indeed, Mother produced no evidence

       to support her claim that she regularly attended NA meetings and she even

       acknowledges that she did not have perfect attendance. DCS also presented

       evidence that relapse prevention through NA meetings was not the same as

       relapse prevention services offered by WVA, in which Mother chose not to

       participate after completion of her IOP program. These are the same services

       for which DCS made its most recent referral after Mother relapsed, but Mother

       did not follow through.


[24]   All of the evidence Mother points to that tends to show that she sought

       treatment for her addiction and followed through with relapse prevention

       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 11 of 16
       services occurred during the second six-month period when Mother made great

       strides and cooperated with service providers. Mother ignores her conduct in

       the six months immediately prior to the termination hearing, which indicates

       Mother’s return to a point where she is unable to care for Child. Mother also

       ignores the fact that she presented no evidence to corroborate her testimony that

       she was regularly attending NA. In sum, Mother’s challenge to Finding 22 is

       simply an improper request that we reweigh the evidence. We conclude that

       Finding 22 is supported by the evidence.


[25]   Mother also challenges Finding 23 wherein the court noted that “[d]espite

       lengthy services and periods of progress, Mother has failed to demonstrate

       sustained stability. Mother was evicted on April 1, 2015.” Id. While there is

       conflicting evidence regarding the circumstances surrounding Mother’s possible

       eviction at one point in time, the evidence in the record amply supports the trial

       court’s finding that Mother has not demonstrated stability. Mother completed

       several assessments at the start of the CHINS proceedings, but admits that her

       participation in other services was sporadic for the first six months. Mother

       followed up this initial six-month period with six months of participation in

       services. Indeed, Mother finally completed her third attempt at substance abuse

       treatment, began visitations with Child, secured a job, obtained housing, and

       participated in other case management services.


[26]   In the six months immediately preceding the termination hearing, however,

       Mother’s participation started to decline. Although Mother participated in

       services to some degree, she ignores the fact that she missed at least six drug

       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 12 of 16
       screens, had a relapse by using spice, stopped cooperating with case

       management service providers such that services were terminated, and did not

       fully participate in visitation with Child. As above, Mother’s challenge boils

       down to a request that we reweigh the evidence. Having reviewed the record,

       we conclude that the evidence in the record supports the court’s finding that

       Mother “failed to demonstrate sustained stability.” Id.


[27]   Mother next challenges part of Finding 24 wherein the court noted that

       “Mother stopped engaging in services in late July/early August of 2015.” Id.

       Mother acknowledges that she stopped participating in services, but claims that

       she did so only because the court ordered that DCS no longer fund any services

       for her. In making this argument, Mother ignores her conduct that led to this

       point. With the filing of the petition to terminate Mother’s parental rights,

       many services to Mother were suspended. The decision to move forward with

       termination was made only after Mother’s lack of participation in services and

       cooperation with DCS declined to a point where all previous progress was

       nearly lost and there was no indication that the circumstances were going to

       change. We conclude that Finding 24 is supported by the evidence in the

       record.


[28]   Mother’s challenges to these findings serve as the basis for her challenge to the

       court’s conclusion that the there is a reasonable probability the conditions that

       resulted in Child’s removal and continued placement outside the home will not

       be remedied. The court acknowledged that Mother had made significant

       progress at one point during the CHINS proceedings. Indeed, the FCM and the

       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 13 of 16
       CASA noted that during the second six-month segment, Mother had made

       “tremendous progress” and that the permanency plan was reunification of

       Mother and Child. Transcript at 6. At some point, the circumstances changed

       and Mother’s participation and cooperation with service providers went

       downhill. The same service providers who supported Mother and worked with

       her to the point of considering an in-home visit are the same service providers

       who testified that the circumstances that resulted in the removal of Child from

       Mother’s care have not changed and are unlikely to change given Mother’s

       conduct in the six months immediately preceding the termination hearing. The

       general concern was Mother’s lack of stability. Having reviewed the record, we

       cannot say the court’s finding in this regard is clearly erroneous.


[29]   Mother also challenges the court’s conclusion that termination is in the best

       interests of Child. There is no doubt that Mother loves Child and such was

       acknowledged by the court and service providers. Despite this, the same service

       providers, who had worked with and fought for Mother’s right to parent Child,

       testified that termination of Mother’s parental rights is in Child’s best interests.

       See In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (“the recommendations

       of the case manager and court-appointed advocate to terminate parental rights,

       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”). The record reflects that Mother

       made significant progress at one point in time, but any progress has since been

       lost. Child has now been in foster care for eighteen months and needs


       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 14 of 16
       permanency. Mother’s conduct in the six months prior to the termination

       hearing is more telling of what the future holds than her conduct during a brief

       six-month period. In re E.M., 4 N.E.3d at 643. We cannot say that the court

       erred in concluding that termination was in the best interests of Child.


[30]   Finally, Mother challenges the court’s conclusion that DCS established it had a

       satisfactory plan for the care and treatment of Child. DCS informed the court

       that the permanency plan for Child was adoption by the foster parents, to

       whom Child was closely bonded. Mother argues that DCS should have

       considered a guardianship with Child’s paternal grandparents and asserts that

       such placement is an alternative to termination of her parental rights. The

       record reveals that the paternal grandparents have been involved throughout

       parts of the CHINS proceedings, even filing a motion to intervene and

       participating in visits with Child. Further, during the pendency of the CHINS

       proceedings, Father asked the court to consider placement of Child with the

       paternal grandparents rather than a foster home.3


[31]   As Mother acknowledges, DCS is required only to detail a general direction of

       its plan. See In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). Here,

       DCS did just that. DCS noted that Child is bonded with the foster family she

       has been with for most of her young life and that Child needs permanency. We




       3
        Although no details are provided, the record indicates that the paternal grandparents were considered for
       placement of Child, but were found unsuitable.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016         Page 15 of 16
       cannot say that the court’s conclusion that there is a satisfactory plan in place

       for Child is clearly erroneous.


[32]   Based on the foregoing, we conclude that the court’s findings of fact are

       supported by the evidence in the record and the court’s conclusions supporting

       termination of Mother’s parental rights are not clearly erroneous.


[33]   Judgment affirmed.


[34]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016   Page 16 of 16
