MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Aug 03 2020, 9:12 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
Jeremy L. Seal                                            Curtis T. Hill, Jr.
Seymour, Indiana                                          Attorney General of Indiana

                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

IN THE INVOLUNTARY                                        August 3, 2020
TERMINATION OF THE                                        Court of Appeals Case No.
PARENT-CHILD                                              19A-JT-1247
RELATIONSHIP OF:                                          Appeal from the
G.B. (Minor Child),                                       Jackson Superior Court
                                                          The Honorable
and                                                       Bruce A. MacTavish, Judge
D.B. (Father),                                            Trial Court Cause No.
Appellant-Respondent,                                     36D02-1806-JT-19

        v.

Indiana Department of Child
Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020                  Page 1 of 17
      Altice, Judge.


                                              Case Summary
[1]   D.B. (Father) appeals from the involuntary termination of his parental rights to

      his minor son, G.B. (Child). He challenges the sufficiency of the evidence

      supporting the termination order.


[2]   We affirm.


                                   Facts & Procedural History
[3]   Father and J.B. (Mother) 1 are the biological parents of Child, born in September

      2011. On May 16, 2017, Indiana Department of Child Services (DCS) received

      a report that Child was a victim of neglect. Mother was the custodial parent

      and reported to be possibly homeless, and Father was incarcerated in the

      Jackson County Jail. The report also alleged methamphetamine use by

      Mother. DCS family case manager (FCM) Lesley Hewitt-Rooks investigated

      the report.


[4]   Because she could not locate Mother, she met with Child at his preschool and

      learned that sometimes Child stayed with Mother’s mother (Maternal

      Grandmother), but that Child was currently staying with Mother in a trailer

      that did not have running water or electricity and had holes in the floor. There




      1
        Mother passed away during the proceedings and prior to the termination hearing. We primarily focus on
      the facts related to Father.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020               Page 2 of 17
      was also no food in the home. Child told FCM Hewitt-Rooks that the visible

      scratches and bruises on his legs were from falling in the holes in the floor.

      FCM Hewitt-Rooks also learned from the trailer park leasing office that the

      trailer in which Mother was staying had received notice that it had to be

      removed from the grounds within thirty days due to its condition.


[5]   Mother submitted to a drug screen on May 16, 2017, the results of which later

      came back positive for methamphetamine and amphetamine. FCM Hewitt-

      Rooks confirmed that Father was incarcerated in the Jackson County jail due to

      an arrest for driving while suspended and that he had previous arrests for

      unlawful possession of a syringe and a history of substance abuse, including

      confirmed methamphetamine use. Child was removed from Mother’s care on

      May 19, 2017, and placed with Maternal Grandmother, where he has

      continued to reside throughout the pendency of this action.


[6]   On May 22, 2017, DCS filed a child in need of services (CHINS) petition. A

      detention hearing was held the same day, with Mother appearing in person and

      Father appearing by videoconference from jail. The court continued Child’s

      placement out of the home. Father was released from jail about a week after

      DCS became involved and lived with his mother at the Allstate Inn motel.


[7]   An informal mediation occurred on June 21, 2017, at which Father stipulated

      that Child was a CHINS and agreed to a dispositional order. The court took

      the CHINS matter under advisement, pending a hearing for Mother, after

      which the court adjudicated Child a CHINS on August 7, 2017.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 3 of 17
[8]    On September 27, 2017, the court held a dispositional hearing, and the ensuing

       dispositional order required Father to, among other things, enroll in DCS

       recommended programs, obtain suitable housing, secure a stable source of

       income, complete a substance abuse assessment and a psychological evaluation

       and any recommended treatment from those assessments, submit to drug and

       alcohol screens, and participate in a Fatherhood Engagement program.


[9]    Kim Nelson, a licensed clinical social worker and licensed clinical addictions

       counselor, completed a psychological evaluation of Father on September 19,

       2017 pursuant to DCS referral. Father admitted that at the time of the

       evaluation he was using methamphetamine, heroin, opiates, and/or marijuana

       daily. Nelson recommended, among other things, intensive outpatient

       treatment (IOP) for Father. He attended some IOP sessions from September

       25, 2017 to April 12, 2018.


[10]   The matter came for a review hearing in October 2017. The court found that

       Father had “partially complied” with the case plan, participating in a

       fatherhood engagement program and visiting with Child, but he had not

       completed all evaluations for which he had been referred. Exhibits Volume at 69.

       The court determined, “Parents are not consistently participating in services to

       enhance their ability to fulfill their parental obligations” and the cause of

       Child’s “out-of-home placement or supervision has not been alleviated.” Id.

       Following a December 2017 review hearing, the court similarly found that

       Father had partially complied. Although he was participating in substance

       abuse group therapy, individual therapy, and inpatient treatment, was visiting

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 4 of 17
       with Child, and had been meeting with Fatherhood Engagement, his last drug

       screen was positive for methamphetamine and amphetamine, and he was

       unemployed.


[11]   In January 2018 Father was arrested, and in February 2018, he pled guilty in

       Bartholomew County to one count of Class C misdemeanor operating a vehicle

       with ACE of at least .08 and one count of Level 6 felony unlawful possession of

       a syringe. He was sentenced to probation of one and one-half years.


[12]   Following an April 11, 2018 permanency hearing, the court issued an order on

       May 18, 2018 changing the permanency plan to adoption with a concurrent

       plan of reunification. The May 18 order stated:


               [Father] has not complied with the child’s case plan. [Father]
               has stopped participating with his Fatherhood [E]ngagement
               worker, he continues to test positive for methamphetamine, he is
               not participating in substance abuse treatment or individual
               counseling, he has not completed a psychological assessment, he
               is not employed and does not have stable housing. [Father] has
               also not visited with [Child] since his arrest in January.


       Exhibits Volume at 77.


[13]   On June 6, 2018, Father admitted to violating his probation by using

       methamphetamine on April 12, 2018, and by possessing a syringe and using

       methamphetamine on April 18, 2018. Father was placed back on probation

       and placed at Lifespring in a thirty-day treatment program, but he left after two

       weeks when his insurance stopped paying.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 5 of 17
[14]   On July 5, 2018, DCS filed a petition to terminate Father’s parental rights.

       Father failed to appear at an August 2018 review hearing, and the court found

       Father had not complied with the case plan, was incarcerated for the majority

       of the reporting period, continued to test positive for illegal substances, and had

       not visited with Child.


[15]   Another review hearing was held in January 2019. At that point, Father was

       partially complying again with the case plan. He had participated in four of six

       IOP meetings and had submitted to drug screens, but tested positive for

       methamphetamine once in December 2018. After his July 2018 release, he

       participated in weekly supervised visits with Child, but no-showed once in

       December 2018. The court found that the cause of Child’s out-of-home

       placement or supervision had not been alleviated and that DCS supervision

       should continue.


[16]   The termination hearing occurred on February 27, 2019. Nelson testified that

       as part of her September 2017 psychological evaluation of Father, she

       considered family history, as well as biological, psychological and social factors

       with regard to mental health and substance abuse issues. She learned from

       Father that he had been using various substances, episodically, throughout his

       life, with periods of not using one substance but using another. He started with

       alcohol twenty years prior, and then his substance abuse expanded into heroin,

       marijuana, opiates, and methamphetamine. She set up goals and

       recommended services, including long-term residential treatment, but she and

       Father agreed to start with a less restrictive care plan that included IOP services,

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 6 of 17
       supplemental individual therapy, and recovery coaching. Father started IOP

       services on September 26, 2017 and his last attended group session was April

       12, 2018. In total, Father attended 23 out of 70 or 80 scheduled sessions during

       that time. Nelson felt that Father “was moving towards” accomplishing goals

       and had shown improvement by March and April 2018, but then was

       incarcerated and did not make any further progress. Transcript at 44.


[17]   Michelle Knight, DCS liaison at Centerstone, testified that Centerstone

       conducted a substance abuse assessment of Father on July 31, 2018. He was

       recommended for IOP group and individual therapy. She characterized

       Father’s engagement in services as “inconsistent.” Id. at 48. In October 2018,

       he attended one of ten sessions, two of four sessions in November, and five of

       ten sessions in December. In January 2019, he attended four of eleven sessions

       and five of twelve sessions in February 2019. Of those instances of non-

       attendance, his therapist canceled one, Father canceled two, and the rest were

       no-shows. There were two sessions scheduled during the week of the

       termination hearing in February 2019; he attended only one.


[18]   Centerstone child therapist Melissa Tippetts testified that she had been working

       with Child since November 2017. Based on an evaluation, Child’s therapeutic

       needs were treatment for processing trauma, coping with anxiety due to neglect,

       and treatment for an eating disorder in which Child would hoard food and only

       eat very few types of foods. Tippetts testified that Child had made progress but

       still needed therapy. With regard to Father, Tippetts testified that Child enjoys



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 7 of 17
       visits with Father but “the inconsistency” of the visits was detrimental to

       Child’s well-being and mental health. Id. at 56.


[19]   CASA Katherine Lewis testified that she was Child’s CASA for approximately

       one year. She opined that termination was in Child’s best interests, as living

       permanently with his maternal grandparents, with whom he had been living

       during the entirety of the proceedings, provided Child with a stable and

       supportive home “versus the fact that [Father] really doesn’t have stability and

       the ability to care for [Child].” Id. at 60.


[20]   FCM Hewitt-Rooks testified that she first became involved with the case as the

       assessing FCM, then it was transitioned to someone else, and in July 2018 the

       case was returned to her. She testified that Father was initially involved with

       Fatherhood Engagement, but he did not complete the program and the referral

       was closed unsuccessfully. With regard to drug screens, FCM Hewitt-Rooks

       testified that between August and December 2018, Father was a no-show for

       thirty screens and that he tested positive approximately thirty times from May

       2017 to February 8, 2019. She testified that Father was honest with her when

       she confronted him about the positive screens, admitting that he had relapsed.

       While he completed the required substance abuse assessments, he did not

       successfully complete the recommended substance abuse treatment services or

       recommended psychological services.


[21]   With regard to visitation, she stated that throughout the life of the case, DCS

       had recommended only supervised visitation, for an hour and a half once a


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 8 of 17
       week. She testified that, after his release from incarceration in June or July

       2018, Father’s visits were inconsistent but more recently had become more

       consistent. She recalled one visit in which Father smelled of alcohol and she

       performed an instant alcohol screen, after which the visit was discontinued.

       She testified that obtaining housing and employment was a DCS goal that had

       been discussed with Father but he never properly addressed it. When asked

       whether the conditions that led to Child’s removal were likely to be remedied,

       she replied “No” and explained, “through the life of the case for two years he’s

       shown instability, no housing, no employment, no way to provide for [Child].

       He’s used substances throughout the entire case and just showing that he’s

       incapable of raising [Child] at this time.” Id. at 77-78. She testified that it

       would not be in Child’s best interest to provide Father with more time to try to

       and address his issues and that termination was in Child’s best interests.


[22]   FCM Hewitt-Rook testified that the plan for Child was adoption by his

       maternal grandparents with whom he had been living for the last twenty-two

       months. She described that he has thrived, noting that he was behind

       academically upon removal and is now above average in his classwork. He is

       happy, healthy, and has made progress with his eating disorder. She had “no

       concerns whatsoever” with the grandparents’ ability to care for Child. Id. at 81.


[23]   Father, then twenty-eight years old, also testified. He testified that he began

       with drugs and alcohol around age thirteen and that he had been using drugs

       and/or alcohol all his adult life with the longest period of sobriety being nine

       months. He acknowledged that he last used methamphetamine two weeks

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 9 of 17
       prior to the termination hearing. At the time of the hearing, Father was not

       employed, he relied on others to purchase food, and his driver’s license was

       suspended. He was living in a residence with his mother, sister, and his sister’s

       two children. None of them were employed and did not pay rent, as a friend

       was letting them live there rent-free. Father acknowledged that they could be

       told to leave at any time and stated that the living situation “could be better.”

       Id. at 21. Father estimated that he had had eight or nine jobs since release from

       jail in July 2018 and the longest he had been employed was a few weeks. He

       admitted his drug use contributed to lack of employment and his instability. At

       the time of the hearing, Father was currently going to IOP at Centerstone,

       which met three times a week, although he testified that he had recently missed

       a couple of appointments but could not recall exactly why. When asked why

       he missed an appointment at Centerstone a few days prior to the termination

       hearing, Father said, “I think I was sleeping.” Id. at 86. Father asked the court

       for more time to continue with his treatment and DCS’s recommendations.


[24]   The trial court entered findings of fact and conclusions of law terminating

       Father’s parental rights to Child, including:


               Termination is in the child’s best interests . . . in that:


               1. [Father] has abused illegal substances for the majority of his
               life, and it has impacted his ability to safely and appropriately
               parent his child.


               2. [Father] has never had stable employment and currently does
               not have stable housing.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 10 of 17
        3. [Father] did not have a relationship with the child until DCS
        became involved. Since that time, [Father] has not proven his
        ability to safely and appropriately parent the child.


        4. [Father] has never adequately addressed his substance use or
        instability.


        5. [Child] is thriving in his current placement. He is happy and
        healthy and well cared for.


        6. [Child] has made strides in his mental health and that further
        visitation with his father would be detrimental to his mental
        health.


        7. [Child] has overcome many of the issues he suffered at the
        time of removal, including an eating disorder. He is learning
        how to process his past trauma and work through anxiety.


        8. FCM Hewitt-Rooks and Katherine Lewis believe that
        termination is in the best interest of the child because of
        [Father]’s drug use and instability and because [Child] deserves
        permanency. They both believe it is in his best interest to be
        adopted by his current placement.


        9. Due to [Father]’s lack of stability in housing and employment
        and his confirmed and persistent use of illegal substances, he has
        shown that the conditions that led to the removal of the child are
        not likely to be remedied.


        10. It is not in the child’s best interest to give [Father] more time
        to remedy these issues. [Father] has been given almost two years
        to show that he can be a safe and appropriate parent to [Child],
        and he has not made any progress towards that goal.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 11 of 17
       Appellee’s Appendix at 6. The court found that a satisfactory plan for Child’s care

       and treatment existed, namely adoption, and it terminated Father’s rights.

       Father now appeals.


                                        Discussion & Decision
[25]   When reviewing the termination of parental rights, we consider the evidence in

       the light most favorable to the prevailing party, and we will not reweigh the

       evidence or judge the credibility of the witnesses. Matter of M.I., 127 N.E.3d

       1168, 1170 (Ind. 2019). To prevail, the challenging party must show that the

       court’s decision is contrary to law, meaning that the probative evidence and

       reasonable inferences point unerringly to the opposite conclusion. Id. “Because

       a case that seems close on a ‘dry record’ may have been much more clear-cut in

       person, we must be careful not to substitute our judgment for the trial court

       when reviewing the sufficiency of the evidence.” In re E.M., 4 N.E.3d 636, 640

       (Ind. 2014).


[26]   It is well recognized that a parent’s interest in the care, custody, and control of

       his or her children is perhaps the oldest of the fundamental liberty interests. In

       re R.S., 56 N.E.3d 625, 628 (Ind. 2016). 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


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 12 of 17
       (Ind. Ct. App. 2001). The purpose of terminating parental rights is not to

       punish the parents, but to protect their children. Id.


[27]   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 and that there is a

       satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

       4(b)(2)(C), (D)..


[28]   On appeal, Father contends that DCS failed to present clear and convincing

       evidence that the conditions resulting in Child’s removal or the reasons for

       placement outside the home would not be remedied and that termination is in

       Child’s best interests. We will address each of these in turn.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 13 of 17
                                          Conditions Not Remedied

[29]   In deciding whether a reasonable probability exists that conditions will not be

       remedied, the trial court must judge a parent’s fitness to care for his children at

       the time of the termination hearing, taking into consideration evidence of

       changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans.

       denied. The court must also evaluate the parent’s habitual patterns of conduct to

       determine whether there is a substantial probability of future neglect or

       deprivation of the children. Id. “A pattern of unwillingness to deal with

       parenting problems and to cooperate with those providing social services, in

       conjunction with unchanged conditions, support a finding that there exists no

       reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d

       204, 210 (Ind. Ct. App. 1999), trans. denied, cert. denied (2002). The statute does

       not simply focus on the initial basis for a child’s removal for purposes of

       determining whether a parent’s rights should be terminated, but also those bases

       resulting in the continued placement outside the home. In re N.Q., 996 N.E.2d

       385, 392 (Ind. Ct. App. 2013). 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 Kay L., 867 N.E.2d 236,

       242 (Ind. Ct. App. 2007).


[30]   Father admits that he is “not perfect” and has substance abuse issues but urges

       that “[he] spent the entirety of this case working on improving his situation”

       and, despite some “setbacks[,]” “continued to make progress.” Appellant’s Brief

       at 9. We cannot agree with this characterization of the evidence. Father was

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 14 of 17
       incarcerated at the time of Child’s removal and was incarcerated again during

       the proceedings after committing additional crimes. When released from

       incarceration, his once-per-week supervised visits with Child were inconsistent,

       becoming more consistent only closer to the termination hearing. He did not

       complete substance abuse treatment or other services as recommended after his

       psychological evaluation. He did not complete the Fatherhood Engagement

       program. Father failed many drug screens throughout the course of the

       proceedings, and he no-showed for drug screens about thirty times between

       August and December 2018. He never obtained stable employment or housing.


[31]   While Father asks for more time to work on his issues, he has made effectively

       little to no progress in two years. “Where there are only temporary

       improvements and the pattern of conduct shows no overall progress, the court

       might reasonably find that under the circumstances, the problematic situation

       will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). Here,

       the evidence amply supports the trial court’s conclusion that there is a

       reasonable probability that the conditions that resulted in Child’s removal

       and/or continued placement outside the home will not be remedied.


                                                  Best Interests

[32]   Father asserts that the evidence was insufficient to support the trial court’s

       determination that termination was in Child’s best interests. In making this

       best-interests determination, the trial court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. In re J.C.,

       994 N.E.2d 278, 290 (Ind. Ct. App. 2013). The court must subordinate the
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 15 of 17
       interest of the parent to those of the children and need not wait until a child is

       irreversibly harmed before terminating the parent-child relationship. McBride v.

       Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App.

       2003). Our Supreme Court has explained that “[p]ermanency is a central

       consideration in determining the best interests of a child.” In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have previously held that 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.” In re. J.S., 906 N.E.2d

       226, 236 (Ind. Ct. App. 2009).


[33]   Father suggests that he and Child “had the proper foundation to go forward”

       and that “[s]evering the parent-child relationship would introduce the very

       instability that [DCS] intended to prevent.” Appellant’s Brief at 10. We disagree.

       As to their “foundation,” Father did not have custody of Child and did not

       share much of a relationship, if at all, prior to Child’s removal. While Child

       appeared to enjoy the supervised, once-per-week visits that he did have with

       Father, Father’s visits were inconsistent, becoming more consistent only later in

       the case, and, according to Child’s therapist, the inconsistency was detrimental

       to Child’s well-being. We recognize that Father had partially complied with

       DCS’s case plan at times during the proceedings, but Father never completed

       substance abuse or psychological treatments. His failure to address his

       substance abuse issues was reflected in the fact that he tested positive for


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 16 of 17
       methamphetamine two weeks before the termination hearing. And in the same

       week as the termination hearing, he missed a Centerstone session for no reason

       other than he might have been asleep. Father he did not have a job or stable

       home. The totality of the evidence shows that Father cannot provide Child

       with the consistency and stability he needs. Both the FCM and CASA testified

       that termination of Father’s parental rights was in Child’s best interests.

       Accordingly, we find that sufficient evidence supports the court’s determination

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


[34]   Judgment affirmed.


       Riley, J. and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1247 | August 3, 2020   Page 17 of 17
