MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Mar 13 2020, 12:32 pm
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone IV                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 13, 2020
of the Parent-Child Relationship                         Court of Appeals Case No.
of S.L. (Minor Child)                                    19A-JT-2335
                                                         Appeal from the Madison Circuit
and                                                      Court
                                                         The Honorable G. George Pancol,
D.K. (Mother),                                           Judge
Appellant-Respondent,                                    Trial Court Cause No.
                                                         48C02-1902-JT-134
        v.

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020               Page 1 of 16
      Bradford, Chief Judge.



                                             Case Summary
[1]   D.K. (“Mother”) is the biological mother of S.L. (“Child”). The Department of

      Child Services (“DCS”) became involved with Mother and Child due to

      concerns of drug use by Mother. Child was removed from Mother’s care and

      alleged to be a child in need of services (“CHINS”) on February 7, 2017.

      Following the CHINS adjudication, Mother was ordered to complete certain

      services, but failed to do so. In light of Mother’s failure to complete services,

      DCS eventually petitioned to terminate her parental rights to Child. Following

      an evidentiary hearing, the juvenile court granted DCS’s termination petition.

      On appeal, Mother challenges three of the juvenile court’s findings and

      contends that DCS failed to present sufficient evidence to support the

      termination of her parental rights.1 We affirm.



                              Facts and Procedural History
[2]   Child was born on August 4, 2002. DCS received two unsubstantiated reports

      about Mother and Child in the fall of 2016. DCS again became involved with

      Mother and Child on January 14, 2017, after receiving reports of drug use by

      Mother. Specifically, Mother was alleged to be using amphetamine,




      1
        D.L. is Child’s biological father. He does not participate in this appeal. As such, we will limit our
      discussion to facts relevant to the termination of Mother’s parental rights to Child.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020                     Page 2 of 16
      methamphetamine, opiates, and THC. Also at this time, DCS received a report

      that Mother had taken Child’s then-thirteen-year-old brother to the emergency

      room after he made suicidal statements.


[3]   DCS removed Child from Mother’s care and filed a petition alleging that Child

      was a CHINS in Marion County on February 7, 2017. On March 29, 2017, the

      juvenile court adjudicated Child to be a CHINS and entered a dispositional

      order. In this order, the juvenile court ordered Mother to complete certain

      services including therapy, home-based case management, random drug

      screens, and a substance-abuse assessment. The CHINS case was transferred to

      Madison County on August 8, 2017. The permanency plan was changed to

      adoption on October 24, 2018, after the juvenile court determined that “[i]n the

      29 months since the Child had been removed from her home, Mother had made

      no significant progress [in] remedying the conditions which necessitated the

      removal of the Child from her care and custody[.]” Appellant’s App. Vol. II p.

      9.


[4]   On March 1, 2019, DCS filed a petition to terminate Mother’s parental rights to

      Child. The juvenile court conducted a two-day evidentiary hearing on May 28

      and July 23, 2019. During this hearing, DCS presented evidence outlining

      Mother’s failure to comply with services, remain drug free, and make any

      significant progress in improving her ability to provide the necessary care for

      Child. Following the conclusion of the evidence, the juvenile court took the

      matter under advisement. On September 9, 2019, the juvenile court issued an

      order terminating Mother’s parental rights to Child.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 3 of 16
                                 Discussion and Decision
[5]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Although

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

      termination of those rights when parents are unable or unwilling to meet their

      parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),

      trans. denied. Parental rights, therefore, are not absolute and must be

      subordinated to the best interests of the children. Id. Termination of parental

      rights is proper where the children’s emotional and physical development is

      threatened. Id. The juvenile court need not wait until the children are

      irreversibly harmed such that their physical, mental, and social development is

      permanently impaired before terminating the parent–child relationship. Id.


[6]   In reviewing termination proceedings on appeal, this court will not reweigh the

      evidence or assess the credibility of the witnesses. In re Involuntary Termination

      of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only

      consider the evidence that supports the juvenile court’s decision and reasonable

      inferences drawn therefrom. Id. Where, as here, the juvenile court includes

      findings of fact and conclusions thereon in its order terminating parental rights,

      our standard of review is two-tiered. Id. First, we must determine whether the

      evidence supports the findings, and, second, whether the findings support the

      legal conclusions. Id.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 4 of 16
[7]   In deference to the juvenile court’s unique position to assess the evidence, we

      set aside the juvenile court’s findings and judgment terminating a parent–child

      relationship only if they are clearly erroneous. Id. A finding of fact is clearly

      erroneous when there are no facts or inferences drawn therefrom to support it.

      Id. A judgment is clearly erroneous only if the legal conclusions made by the

      juvenile court are not supported by its findings of fact, or the conclusions do not

      support the judgment. Id.


                         I. Challenge to Trial Court’s Findings
[8]   Mother contends that three of the juvenile court’s findings are not supported by

      the record. Specifically, Mother challenges Findings Numbers 4, 5, and 7, all of

      which detail procedural facts occurring while the CHINS case was pending in

      Marion County.2 In Finding Number 4, the juvenile court found as follows:


               4.     On February 7, 2017, DCS filed a petition alleging the
               Child to be a Child In Need of Services under cause number
               49D09l-702-JC-000399 because Mother had failed to provide a
               safe and stable living environment, Mother had an untreated
               substance abuse problem, Mother had used illegal substances in
               front of her children, the Child’s sibling had multiple hospital
               stays for suicidal ideation, Mother had demonstrated
               inappropriate attitudes and behaviors during the sibling’s hospital
               stay that were inconsistent with safe and appropriate parenting,
               and Father could not be located or otherwise made available to



      2
        DCS seems to have introduced incomplete copies of the underlying CHINS documents into evidence
      during the evidentiary hearing. While we conclude in this case that the challenged findings are supported by
      the record, we believe that the better practice would have been to introduce full, certified copies of all relevant
      CHINS documents into evidence during the termination proceedings and encourage DCS to do the same.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020                        Page 5 of 16
              assume care of the children. The Marion Superior Court
              authorized the filing of the CHINS Petition on February 7, 2017
              and authorized the continued removal of the Child and her
              sibling from their parents’ care.


      Appellant’s App. Vol. II p. 7. In challenging this finding, Mother argues that

      the finding is unsupported by the record as the CHINS petition was not part of

      the record in the termination proceedings. While Mother is correct that the

      CHINS petition was not included in the record, other evidence in the record,

      including the testimony of family case manager (“FCM”) Marlana Bertram and

      service provider Deana Heller and certain other documents, establishes the

      relevant facts contained therein. The juvenile court’s finding is therefore

      supported by the evidence.


[9]   In Finding Number 5, the juvenile court found as follows:


              5.     On March 29th, 2017, the CHINS court conducted a fact-
              finding hearing on the CHINS petition. This Court finds the
              following facts and reasonable inferences from this hearing for
              purposes of these termination proceedings:
                     a.     Mother admitted that the Child and her sibling
                     were CHINS, that Mother required the assistance of
                     DCS to maintain a safe and stable home free from
                     substance abuse, and that the course of intervention
                     of the court was necessary to ensure the safety and
                     well-being of the children.
                     b.     Mother waived her right to a pre-dispositional
                     report, the CHINS Court conducted a dispositional
                     hearing, and the court issued a Parental Participation
                     Order that Mother participate in home based therapy,
                     home based case management, random drug screens,
                     and a substance abuse assessment if she were to test

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 6 of 16
                        positive for any illicit substances.
                        c.     The Child was adjudicated a Child in Need of
                        Services.
                        d.     The Child remained out of Mother’s custody
                        and care.


       Appellant’s App. Vol. II p. 7. Mother challenges the portion of this finding

       indicating that she admitted that Child was a CHINS and waived her right to a

       pre-dispositional report. However, whether Mother admitted that Child was a

       CHINS or waived her right to a pre-dispositional report is irrelevant given the

       evidence establishing that Child was subsequently adjudicated to be a CHINS

       and, following a dispositional hearing, Mother was ordered to complete the

       services listed.

[10]   In Finding Number 7, the juvenile court found as follows:


               7.    On July 5th, 2017, the CHINS Court conducted a periodic
               review hearing. This Court now finds the following facts and
               reasonable inferences from this hearing for purposes of these
               termination proceedings:
                     a.     Conditions still required the Child’s removal
                     from the home.
                     b.     Mother agreed to reduced visitation time with
                     the Child due to ongoing tensions between the two of
                     them.
                     c.     Mother was continuing to test positive for the
                     use of opiates.
                     d.     Father resided in Louisiana. He agreed to
                     contact the Louisiana DCS in order to participate in
                     random drug screens and an evaluation of his home
                     to determine the appropriateness of placement of the
                     Child in his care.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 7 of 16
                        e.     The Child was having significant behavioral
                        issues, including the use of marijuana and statements
                        regarding self-mutilation. The parties agreed to
                        continued drug screens and a psychological
                        evaluation of the Child.


       Appellant’s App. Vol. II p. 8. Mother challenges the portion of this finding

       indicating that she agreed to reduced visitation time with Child due to ongoing

       tension between her and Child. Service provider Allie Raveed testified that

       Mother’s visitation with Child was reduced and eventually stopped at Child’s

       request due to inappropriate behavior by and tension with Mother. Whether

       Mother agreed to the reduced visitation is irrelevant given the evidence that

       Mother’s visitation with Child was in fact reduced due to inappropriate

       behavior by Mother and tensions between Child and Mother.


[11]   For the reasons set forth above, we conclude that the challenged findings are

       not clearly erroneous. In any event, we note that Mother only challenged three

       of the juvenile court’s twenty-nine factual findings. The twenty-six

       unchallenged factual findings must be accepted as correct, see Madlem v. Arko,

       592 N.E.2d 686, 687 (Ind. 1992), and we may affirm judgment of the juvenile

       court if the court’s unchallenged findings support the its conclusions. See In re

       Termination of Parental Rights of S.S., 120 N.E.3d 605, 611 (Ind. Ct. App. 2019).

       Upon review, we conclude that the unchallenged findings support the juvenile

       court’s conclusions thereon as discussed below.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 8 of 16
                               II. Sufficiency of the Evidence
[12]   Mother also contends that the evidence is insufficient to sustain the termination

       of her parental rights to Child. In order to support the termination of Mother’s

       parental rights to Child, DCS was required to prove, inter alia, the following:


               (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.


       Ind. Code § 31-35-2-4(b)(2). Mother claims that DCS failed to present sufficient

       evidence to prove these subsections by clear and convincing evidence.


                      A. Indiana Code Section 31-35-2-4(b)(2)(B)
[13]   It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

       in the disjunctive, the juvenile court need only find that one of the conditions

       listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.

       2003), trans. denied. Therefore, where the juvenile court determines that one of

       the above-mentioned factors has been proven and there is sufficient evidence in

       the record supporting the juvenile court’s determination, it is not necessary for

       DCS to prove, or for the juvenile court to find, either of the other factors listed


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 9 of 16
       in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.

       DCS does not allege that Child has been adjudicated CHINS on two separate

       occasions. As such, DCS had to prove either that (1) the conditions resulting in

       removal from or continued placement outside Mother’s home will not be

       remedied or (2) the continuation of the parent–child relationship poses a threat

       to Child.

[14]   The juvenile court determined that the evidence established a reasonable

       probability that the conditions that resulted in Child’s removal and continued

       placement outside Mother’s care would not be remedied. When making a

       determination as to whether the conditions leading to placement outside a

       parent’s care are likely to be remedied, juvenile courts “should judge a parent’s

       fitness at the time of the termination hearing, considering any change in

       conditions since the removal.” Lang v. Starke Cty. Office of Family & Children, 861

       N.E.2d 366, 372 (Ind. Ct. App. 2007). “The trial court can also consider the

       parent’s response to the services offered through the DCS.” 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.’” Id. (quoting In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999),

       trans. denied).


[15]   In determining that the conditions for placement outside Mother’s care would

       not be remedied, the juvenile court noted that after Child was found to be a

       CHINS, Mother was ordered to participate in home-based therapy, home-based

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 10 of 16
case management, and random drug screens. She was also ordered to complete

a substance-abuse assessment and all recommended services. With respect to

Child’s ongoing placement outside Mother’s care, the juvenile court found as

follows:


        a.      Mother has failed to adequately participate in reunification
        services designed to overcome her mental health, chronic
        instability, and substance abuse issues. Mother has been offered
        multiple opportunities to address these concerns, including
        multiple assessments, individual and group therapy, home based
        case management, substance abuse treatment, and drug screens.
        Mother has disregarded these opportunities by denying that she
        has a problem at all, denying the accuracy of screen results, and
        failing to appear for scheduled and rescheduled service provider
        appointments. Mother also failed to cooperate and communicate
        with service providers, including her frequently relocating
        without contacting these parties resulting in the disruption of all
        efforts to engage her in reunification services.

        b.     Mother’s substance abuse has not abated. Mother
        provided a copious history of positive screens for multiple
        different illegal controlled substances, spanning multiple years.
        Mother alleged during the CHINS proceeding that she sought
        treatment for her substance abuse with a non-DCS referred
        provider, but failed to provide proof of this treatment or to sign
        releases so that other parties could obtain this proof. Further,
        Mother continued to test positive after these alleged periods of
        treatment, demonstrating that either the treatment was not
        actually or meaningfully undertaken or was otherwise ineffective
        in resolving the problem. The Court notes that Mother cannot
        adequately provide necessary supervision and oversight of any of
        her children while engaging in substance abuse.

        c.    While the allegations at the outset of the CHINS matter
        did not include mental health concerns beyond Mother’s

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 11 of 16
               substance abuse, it has become clear that her substance abuse and
               instability are intertwined with significant mental health
               concerns. Mother has been afforded multiple opportunities to
               identify and address these concerns, but has persistently avoided
               meaningful engagement with such services, accepting
               responsibility for those failures to pursue treatment, and
               acknowledging the consequences of her behaviors for the Child.


       Appellant’s App. Vol. II pp. 15–16.


[16]   In support of its findings, the juvenile court pointed to evidence which

       demonstrates that Mother has made little or no progress in remedying the

       conditions which have necessitated the Child’s ongoing placement outside of

       her care. Specifically, Mother has exhibited continued issues with substance

       abuse, housing and financial instability, and mental health. Mother

       consistently failed to engage with services and numerous services were closed

       out unsuccessfully due to Mother’s non-compliance. Further, while Mother

       participated in random drug screens, the results of these screens demonstrated a

       persistent pattern of ongoing substance abuse. Mother failed to maintain stable

       housing and her frequent relocations resulted in multiple service disruptions

       and frequently hindered her progress in improving her parental abilities. We

       agree with the juvenile court’s determination that the evidence demonstrates a

       reasonable probability that the conditions resulting in Child’s removal from or

       continued placement outside Mother’s care will not be remedied.

[17]   In challenging the sufficiency of the evidence to sustain the termination of her

       parental rights, Mother claims that DCS failed to verify whether her positive


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 12 of 16
       drug screens could have possibly resulted from prescribed medications,

       asserting that at least one DCS witness “seemed quite disinterested in

       confirming or denying [Mother’s] claimed health problems.” Appellant’s Br. p.

       10. Mother also suggests that some of the positive screens might not

       “necessarily represent daily use but instead be carryover results of single prior

       usages.” Appellant’s Br. p. 11. If so, the evidence might have “improperly

       exaggerate[d] her problem.” Appellant’s Br. p. 11. Mother further claims that

       “[t]here were no findings on the effect of the levels of drugs shown to be present

       in the positive screens had on [her] ability to function properly as a parent.

       Without such [a] determination[,] the use of drugs should not be a proper basis

       for termination of parental rights[.]” Appellant’s Br. p. 14. Mother’s claims in

       this regard amount to nothing more than an invitation for this court to reweigh

       the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.


[18]   During the underlying proceedings, Mother reported to service provider Ashley

       Galloway-Stafford that she and Child were “not close” and “that she didn’t

       have [a]n overt desire to be close with her.” Tr. p. 75. On appeal, she

       acknowledges that she “has made mistakes in the past” and admitted that she

       “will never be mistaken for June Clever [sic] or any other situation comedy

       mother from the 50’s or 60’s.” Appellant’s Br. pp. 13, 14. She claims,

       however, that “[t]here was no basis … to conclude that any drug abuse problem

       [she had] had an ongoing disabling effect on her ability to parent.” Appellant’s

       Br. p. 14. For the reasons stated above, we disagree.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 13 of 16
                       B. Indiana Code Section 31-35-2-4(b)(2)(C)
[19]   We are mindful that in considering whether termination of parental rights is in

       the best interests of a child, the juvenile court is required to look beyond the

       factors identified by DCS and look to the totality of the evidence. McBride v.

       Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003). In doing so, the juvenile court must subordinate the interests of the

       parents to those of the children involved. Id. “A parent’s historical inability to

       provide a suitable environment along with the parent’s current inability to do

       the same supports a finding that termination of parental rights is in the best

       interests of the children.” Lang, 861 N.E.2d at 373. Furthermore, this court has

       previously determined that the testimony of the case worker, guardian ad litem

       (“GAL”), or a CASA regarding a child’s bests interests supports a finding that

       termination is in the child’s best interests. Id. at 374; see also Matter of M.B., 666

       N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.


[20]   In finding that termination of Mother’s parental rights was in Child’s best

       interests, the juvenile court found as follows:

               [Child]’s DCS case manager and CASA have both testified that
               termination of the parent-child relationship and adoption[3] of the
               child are in the child’s best interests. The Court agrees with these
               opinions, and now accepts and adopts them as its own finding of




       3
         The record reflects that the DCS plan is for maternal grandmother to adopt Child and maternal
       grandmother stands ready to do just that.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020               Page 14 of 16
               fact in these proceedings, supported additionally by [Mother’s]
               unremedied parenting deficiencies[.]


       Appellant’s App. Vol. II p. 16.

[21]   CASA Danielle Bell testified that at the time of the termination hearing, Child

       was “doing phenomenal.” Tr. p. 81. CASA Bell further testified that since

       being placed with maternal grandmother, Child had done really well in therapy,

       was no longer self-harming, was responding well to medication for anxiety and

       depression, and her performance in school was improving. As for Mother,

       CASA Bell did not believe that Mother had made progress towards

       reunification and “would not” say that there was “a reasonable probability of

       reunification with [M]other.” Tr. p. 84. CASA Bell noted that while Child

       enjoyed a “very motherly” bond with maternal grandmother, Child had a “very

       minimal” relationship with Mother. Tr. pp. 86, 82.


[22]   In testifying that she believed that termination of Mother’s parental rights to

       Child was in Child’s best interests, CASA Bell indicated that


               Outside of just … having concerns about [Mother’s] behaviors
               even in my presence and the manipulation [by Mother] that I’ve
               noted … is of grave concern for me if [Child] were to ever go
               back with [Mother]. I would fear for [Child’s] life because of the
               suicidal ideation that she’s had with the self-harming behaviors.


       Tr. p. 86. In discussing Child’s best interests, FCM Bertram also testified that

       she would have concerns about Child’s mental well-being if Child were

       returned to Mother’s care. Specifically, FCM Bertram testified that she did not

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 15 of 16
       believe that Child could safely return to Mother’s care because Child “suffers

       from depression and anxiety and it’s exasperated with contact” with Mother.

       Tr. p. 39. The juvenile court’s determination that termination of Mother’s

       parental rights is in Child’s best interests is supported by sufficient evidence.


[23]   The judgment of the juvenile court is affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2335 | March 13, 2020   Page 16 of 16
