MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be                              Dec 09 2016, 9:23 am

regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew J. Sickmann                                       Gregory F. Zoeller
Boston Bever Klinge Cross & Chidester                    Attorney General of Indiana
Richmond, Indiana
                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA
In re the Termination of the                             December 9, 2016
Parent-Child Relationship of                             Court of Appeals Case No.
N.H. (Minor Child),                                      89A04-1606-JT-1262
and                                                      Appeal from the Wayne Superior
                                                         Court 3
J.G. (Mother),
                                                         The Honorable Darrin M.
Appellant-Respondent,                                    Dolehanty, Judge

        v.                                               Trial Court Cause No.
                                                         89D03-1602-JT-5

Indiana Department of Child
Services,
Appellee-Petitioner.



Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A04-1606-JT-1262 | December 9, 2016     Page 1 of 10
[1]   J.G. (“Mother”) appeals the order of the Wayne Superior Court terminating her

      parental rights to her minor child, N.H. (“Son”). On appeal, Mother claims that

      there is insufficient evidence to support the trial court’s determination that there

      is a reasonable probability that the conditions that led to Son’s removal from

      Mother’s care would not be remedied.


[2]   We affirm.


                                    Facts and Procedural History

[3]   Son was born in October 2014 to Mother and N.H. (“Father”). At birth, Son

      tested positive for both marijuana and opiates. Also, while in Mother’s care in

      the hospital, Son fell from the bed. As a result, the Indiana Department of Child

      Services (“DCS”) began an investigation. During this investigation, Mother

      admitted to using marijuana and methadone but claimed to have a valid

      prescription for the methadone. Mother also admitted that Son had fallen out of

      bed when she fell asleep.


[4]   On January 5, 2015, DCS filed a petition alleging that Son was a Child in Need

      of Services (“CHINS”). The parents subsequently admitted that Son was a

      CHINS at an initial hearing held on January 30, 2015. Initially, Son remained

      in the care of Father. However, on February 17, 2015, the trial court authorized

      Son’s removal from Father’s care due to ongoing substance abuse and domestic

      violence between Father and Mother.




      Court of Appeals of Indiana | Memorandum Decision 89A04-1606-JT-1262 | December 9, 2016   Page 2 of 10
[5]   At the time of Son’s removal, the parents’ home was filthy and smelled of feces.

      Garbage and feces were all over the kitchen floor. Shortly after Son’s removal,

      the parents left that home. Thereafter, Mother and Father were homeless.


[6]   At a dispositional hearing held on February 20, 2015, the trial court ordered

      Mother to participate in a counseling program that would be referred to her by

      DCS, complete a substance abuse assessment and comply with all

      recommendations of the assessment, submit to random drug and alcohol

      screenings, attend scheduled visitations with Son, and refrain from the use of

      illicit drugs.


[7]   DCS referred mother to Harbor Lights for detox and Meridian for a variety of

      services, including individual counseling, family counseling, a substance abuse

      assessment, and intensive outpatient substance abuse treatment. Mother,

      however, did not complete her detox treatment at Harbor Lights; she instead

      left the program against medical advice. Mother did not subsequently complete

      a detox program. Mother did complete the substance abuse assessment at

      Meridian before her unsuccessful stint at Harbor Lights. However, she did not

      complete the intensive outpatient treatment and only visited the counselor “a

      couple of times.” Tr. p. 156.


[8]   Mother also continued her substance abuse during the CHINS case. Indeed, in

      addition to her admission to using marijuana and methadone during the initial

      assessment, Mother admitted that she had used a variety of drugs, including,

      Suboxone, Xanax, “pills,” heroin, and methamphetamine. Mother also had five


      Court of Appeals of Indiana | Memorandum Decision 89A04-1606-JT-1262 | December 9, 2016   Page 3 of 10
       positive drugs screens in August 2015. Thereafter, Mother agreed to meet with

       her family case manager to submit to additional drug testing. However, Mother

       did not always follow through, and although the case manager could not recall

       precisely how many drug tests were positive, she testified that Mother did

       continue to test positive for drug use. Mother’s second family case manager

       testified that Mother failed to submit nine scheduled drug tests. As late as

       January 2016, Mother tested positive for methamphetamine use.

[9]    Mother was also not fully compliant with the requirement that she regularly

       participate in visitations with Son. Visitations were scheduled twice per week,

       but Mother consistently missed approximately half of these scheduled visits.

       Also, Mother’s behavior during the visits she did attend was, at times, unusual.

       The visitations where held at a DCS office due to Mother’s behavior, which

       included her becoming angry and aggressive toward DCS staff and failing to

       accept criticism. The family case manager believed that Mother was intoxicated

       or under the influence during several visits based on her erratic behavior.

       During one visitation, Mother repeatedly went into the bathroom with her

       backpack, leaving Son unattended while she did so. In July 2015, DCS was

       unable to locate Mother, and she attended none of the scheduled visitations.


[10]   On August 21, 2015, the State charged Mother with possession of

       paraphernalia. Mother pleaded guilty four days later and was sentenced to a

       sixty-day suspended sentence and probation. On September 21, 2015, the State

       filed a petition to revoke Mother’s probation. A warrant was issued for

       Mother’s arrest, and the chronological case summary (“CCS”) for the criminal

       Court of Appeals of Indiana | Memorandum Decision 89A04-1606-JT-1262 | December 9, 2016   Page 4 of 10
       case reveals that she was arrested for this and “new charge(s).” Ex. Vol. p. 28.

       This CCS entry also indicated that Mother was “too intoxicated to bring to

       court for hearing today.” Id. Mother admitted to violating her probation, and

       her probation was revoked.


[11]   At a periodic review hearing held on August 10, 2015, the trial court found that

       Mother was not participating in services and that she was homeless and

       unemployed. Thereafter, DCS filed a petition to hold Mother in contempt of

       the trial court’s dispositional order. On August 24, 2015, the trial court found

       Mother in contempt for failing to participate in services and visitation and for

       continuing to use illicit drugs. The trial court imposed a sixty-day sentence but

       suspended the sentence so long as Mother complied with the dispositional

       order. Mother failed to do so, and the trial court found her in contempt again

       on November 5, 2015. The court ordered Mother to serve twenty-four days in

       jail and attend an intake appointment at Centerstone; if Mother failed to do so,

       the court indicated it would impose the balance of the original sixty-day

       sentence.


[12]   Mother did complete a substance abuse assessment at Centerstone after she was

       released from incarceration. Centerstone recommended that Mother participate

       in intensive outpatient drug treatment and undergo psychiatric and medical

       examinations. Mother participated in the intensive outpatient treatment at

       Centerstone but was eventually discharged from the program for lack of

       attendance and continued substance abuse. Due to Mother’s continued drug



       Court of Appeals of Indiana | Memorandum Decision 89A04-1606-JT-1262 | December 9, 2016   Page 5 of 10
       use, Centerstone was never able to complete the medical or psychiatric

       evaluations.


[13]   In December 2015, Mother was referred to a third-party service provider for her

       supervised visitations with Son. During these twice-weekly visits, Mother had

       difficulty maintaining Son’s attention, as Son tended to interact more with

       Father. In addition, during these visitations, Mother disturbingly referred to

       Son as “my little Jew,” and “Hitler.” Tr. p. 102. Moreover, as of the April 2016

       termination hearing, Mother had last visited Son in January of that year.

       Apparently, Mother had again been incarcerated for possession of

       paraphernalia, and would not be released until May 2016. Mother was also

       facing pending charges for possession of a legend drug. 1


[14]   In February 2016, Son’s permanency plan was changed from reunification with

       the parents to termination of the parents’ parental rights. On February 9, 2016,

       DCS filed a petition to terminate Mother and Father’s parental rights to Son.

       Both Mother and Father initially agreed to voluntarily relinquish their parental

       rights. Mother, however, later withdrew her consent to the termination. The

       trial court then held an evidentiary hearing on the termination petition on April

       26, 2016, and entered an order terminating Mother’s parental rights on May 5,

       2016. Mother now appeals.2




       1
           See Ind. Code ch. 16-42-19 (Indiana Legend Drug Act).
       2
           Father does not participate in this appeal.


       Court of Appeals of Indiana | Memorandum Decision 89A04-1606-JT-1262 | December 9, 2016   Page 6 of 10
                                    Termination of Parental Rights

[15]   The purpose of terminating parental rights is not to punish parents but instead

       to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

       Although parental rights have a constitutional dimension, the law allows for

       their termination when the parties are unable or unwilling to meet their

       responsibilities as parents. Id. Indeed, parental interests must be subordinated to

       the child’s interests in determining the proper disposition of a petition to

       terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).


[16]   Indiana Code section 31-35-2-4(b)(2) provides that 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.

[17]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; G.Y., 904 N.E.2d at 1261. Because Indiana Code section 4(b)(2)(B)

       is written in the disjunctive, the trial court is required to find that only one
       Court of Appeals of Indiana | Memorandum Decision 89A04-1606-JT-1262 | December 9, 2016   Page 7 of 10
       prong of subsection (b)(2)(B) has been established by clear and convincing

       evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).


[18]   Clear and convincing evidence need not establish that the continued custody of

       the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cnty.

       Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). It is instead

       sufficient to show by clear and convincing evidence that the child’s emotional

       and physical development are put at risk by the parent’s custody. Id. If the court

       finds the allegations in a petition are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a).


[19]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility. Id. We

       consider only the evidence and reasonable inferences favorable to the trial

       court’s judgment. Id. In deference to the trial court’s unique position to assess

       the evidence, we will set aside a judgment terminating a parent-child

       relationship only if it is clearly erroneous. Id. Clear error is that which leaves us

       with a definite and firm conviction that a mistake has been made. J.M. v. Marion

       Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.

       denied.


                                         Discussion and Decision

[20]   On appeal, Mother claims that there was insufficient evidence to support the

       trial court’s findings that she still struggled with an addiction to illicit drugs.

       Court of Appeals of Indiana | Memorandum Decision 89A04-1606-JT-1262 | December 9, 2016   Page 8 of 10
       Mother focuses her argument on the fact that DCS did not admit into evidence

       the results of the drugs screens she failed. We understand Mother’s argument to

       be that DCS failed to meet its burden to show, by clear and convincing

       evidence, that there was a reasonable probability that the conditions that

       resulted in the Son’s removal or the reasons for his placement outside the

       parents’ home, i.e., Mother’s substance use problem, would not be remedied.3


[21]   When deciding whether there is a reasonable probability that the conditions

       resulting in a child’s removal or continued placement outside of a parent’s care

       will not be remedied, the trial court must determine a parent’s fitness to care for

       the child at the time of the termination hearing while also taking into

       consideration evidence of changed circumstances. A.D.S. v. Ind. Dep’t of Child

       Servs., 987 N.E.2d 1150, 1156-57 (Ind. Ct. App. 2013). However, the trial court

       may disregard efforts made only shortly before termination and weigh more

       heavily a parent’s history of conduct prior to those efforts. In re K.T.K., 989

       N.E.2d 1225, 1234 (Ind. 2013).


[22]   Here, notwithstanding Mother’s assertions to the contrary, there was ample

       evidence from which the trial court could conclude that the reason for Son’s

       removal from Mother’s care, specifically that Mother’s drug abuse, continued

       and would not be remedied. Indeed, the evidence presented to the trial court




       3
         Mother makes no cognizable argument that DCS failed to meet its burden of proof on the remaining
       elements it was required to prove: that Son had been removed from the parents’ care for the requisite period
       of time, that termination of Mother’s parental rights was in Son’s best interests, and that DCS had a
       satisfactory plan for the care and treatment of Son. We therefore do not address these elements.

       Court of Appeals of Indiana | Memorandum Decision 89A04-1606-JT-1262 | December 9, 2016          Page 9 of 10
       was sufficient to establish that Mother has a serious and untreated substance

       abuse problem. Son was born with drugs in his system, and Mother admitted to

       using drugs during her pregnancy. Thereafter, from the time that Son was

       removed from Mother’s care until Son’s care permanency plan was changed

       from reunification to termination, Mother had more than one year to make

       significant progress in the treatment of her drug addiction, but she never did.

       Mother underwent a substance abuse assessment but never completed any of

       the substance abuse treatment programs to she was referred. Instead, she was

       removed from the intensive outpatient treatment program for her continued

       drug abuse. Mother also showed up to visitations apparently under the

       influence. Mother missed several drug screens and tested positive for others.

       Furthermore, Mother was arrested and convicted for possession of

       paraphernalia and was facing charges for possession of a legend drug. Clearly,

       Mother has a history of drug abuse which has yet to be successfully addressed.


[23]   Therefore, the trial court did not clearly err when it concluded that DCS had

       presented clear and convincing evidence establishing that there was a

       reasonable probability that the conditions that resulted in the Son’s removal or

       the reasons for his placement outside the parents’ home would not be remedied.

       As this is Mother’s only argument, we affirm the order of the trial court

       terminating Mother’s parental rights to Son.


[24]   Affirmed.


       Baker, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 89A04-1606-JT-1262 | December 9, 2016   Page 10 of 10
