MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jan 24 2020, 10:24 am
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
Danielle L. Flora                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 24, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of S.B. (Minor Child);                                    19A-JT-1465
T.B. (Father),                                            Appeal from the Allen Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Charles F. Pratt,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               02D08-1809-JT-336
Services,
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020                Page 1 of 11
                                         Statement of the Case
[1]   T.B. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor child, S.B. (“the Child”). 1 Father raises a single issue for our review,

      which we restate as the following two issues:


              1.       Whether the trial court’s finding that Father was not
                       benefitting from services is supported by the record.


              2.       Whether the trial court clearly erred when it concluded
                       that the conditions that resulted in the Child’s removal
                       from Father’s care will not be remedied.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On September 27, 2018, the Indiana Department of Child Services (“DCS”)

      filed a petition to terminate Father’s parental rights over the Child. The trial

      court held a fact-finding hearing on DCS’s petition, after which it entered the

      following undisputed facts with respect to Father’s relationship with the Child:


              5.    . . . [T]here was a physical altercation between the Mother
              and a man on or about July 12, 2016. The incident of domestic
              violence occurred in the presence of the [Child and his sibling]
              and the [C]hild’s sibling was struck. On or about August 16,
              2016, another incident of domestic violence took place in the




      1
        The Child’s mother has separately appealed the termination of her parental rights. Although our motions
      panel denied a request to consolidate the appeals, the appeals were assigned to the same writing panel, and
      we have decided each appeal on the same date.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020                Page 2 of 11
        presence of the [C]hild’s sibling. The Court found that Father
        did not take any steps to protect the safety and the welfare of the
        [C]hild. The Mother was arrested for domestic battery. The
        Mother tested positive for cocaine on or about November 11,
        2016. The Father tested positive for cocaine as well. The [C]ourt
        found that the [F]ather left his [C]hild in the Mother’s care with
        full knowledge [of] the act of domestic violence occurring in the
        home. In addition[,] the [C]ourt found [that] he had been
        provide[d] services during the pendency of the case[;] he did not
        participate in the referred services to address his drug use or for
        housing assistance.


        6.     A Dispositional Hearing [in the ensuing child-in-need-of-
        services (“CHINS”) case] was held on September 27, 2017[,] as
        to [Father] . . . . The [C]hild . . . w[as] placed in licensed foster
        care. The Dispositional Decree incorporated a Parent
        Participation Plan that required the Father to[ comply with
        fifteen different requirements].


                                      *       *        *


        8.     The . . . Father w[as] granted supervised visitation with the
        [C]hild.


        9.      A Review Hearing was held on February 8, 2017. . . . The
        Father, the Court found, had failed to secure a psychological
        evaluation or participate in therapy. He also tested positive for
        illegal substances.


                                      *       *        *


        22. From the testimony of [DCS] case manager Joshua Meyer,
        the Court finds that the Father was referred for a diagnostic



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020   Page 3 of 11
        evaluation at Park [C]enter in 2016. A second assessment was
        recommended.


        23. The [DCS] referred the Father to Dr. David Lombard, a
        forensic psychologist[,] for a psychological assessment. From
        Dr. Lombard’s testimony[,] the [C]ourt finds that the Father
        completed the evaluation on January 22, 2019. He diagnosed the
        Father as suffering from Cocaine Use Disorder and Personality
        Disorder NOS. He also included a rule out diagnosis of Bipolar
        Disorder, Antisocial Disorder[,] and Borderline Personality
        Disorder. Dr. Lombard referred the Father for substance abuse
        treatment and weekly mental health counseling.


        24. Dr. Lombard testified that his diagnosis was preliminary
        owing to concerns with regard to the Father’s responses to the
        testing. He recommended that the Father return to be tested
        again so that he might answer in a more open and honest
        manner. The Father has refused to retake the tests.


        25. From the testimony of John Martin, a toxicologist with
        [R]edwood Toxicology, the [C]ourt finds that the Father has
        tested positive for cocaine or its metabolite as recently as
        February 27, 2019.


        26. From the testimony of . . . Meyer, the [C]ourt finds that
        multiple service referrals were made for the Father but he has
        only recently begun home based and addiction services.


        27. The Father was referred for individual counseling at
        C.A.P., Inc. From the testimony of Sheila Miano of that
        agency[,] he has not enrolled in individual counseling. He has
        completed a substance abuse assessment and was referred for
        services.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020   Page 4 of 11
                                            ***


        29. On March 25, 2019[,] the Father testified that his
        participation in group therapy has improved since the date Brad
        Snider[, a licensed addictions counselor,] testified.


        30. The Father admitted to cocaine use as recently as March 4,
        2019.


        31. The Father resides with his parents. From the testimony
        of . . . Meyer, the Father’s parents have also had issues with
        regard to child neglect. The Father was referred for home based
        services at C.A.P., Inc. From the testimony of home base case
        manager[] Pat Geimer, the Court finds that the Father has not
        yet completed the goals.


        32. The [C]hild has been placed outside the home under a
        dispositional decree for more than six (6) months.


        33. From the testimony [of] Tracy Kearns, the [C]hild’s
        licensed foster care provider[,] the Court finds that the [C]hild
        had multiple screaming temper tantrums a day. She is no longer
        displaying the extreme behaviors.


        34. Should parental rights be terminated[,] [DCS] has an
        appropriate plan, that being adoption. The [C]hild is in a
        potential pre-adoptive home.


        35. The [C]hild’s Guardian ad Litem has concluded that the
        [C]hild’s best interests are served by the termination of parental
        rights. In support of his conclusion[,] he testified that the parents
        have not demonstrated and continuity [sic] of life stability. He
        also cited the parents’ recent positive drug screens.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020   Page 5 of 11
      Appellant’s App. Vol. 2 at 13-17 (citations to the record omitted). The court

      also found the following fact, which is disputed in this appeal:


              28. Licensed addictions counselor Brad Snider has had the
              Father in his group therapy program to address the Father[]’s
              addictions. The Father has not documented any attendance in
              any 12-step or similar support group as he is required and is not
              participating in group sessions in any substantial way. Therapist
              Snider opined that Father is not benefitting from services. He
              was placed on a zero tolerance risk assessment/level.


      Id. at 17.


[4]   In light of its findings, the court concluded as follows:


              By the clear and convincing evidence[,] the [C]ourt determines
              that there is a reasonable probability that [the] reasons that
              brought about the [C]hild’s placement outside the home will not
              be remedied. . . . The Father has only recently begun services
              despite having been referred [f]or services since the onset [of] the
              underlying CHINS case. At the [f]actfinding [hearing,] the
              [C]ourt found that the Father was not cooperating with services
              provided to him through provisional orders of this [C]ourt. At
              the Review Hearing of February 8, 2017, the Court found that he
              was not in compliance. Similar findings were entered in the
              January 17, 2018[,] Review Order and in the Permanency Order
              of July 10, 2018. His substance abuse addictions therapist has
              reported that the Father is not benefitting from services. The
              Father has continued to test positive for cocaine as recently as
              March 4, 2019. He does not have independent housing for the
              [C]hild despite being offered assistance since the onset of the
              underlying CHINS case.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020   Page 6 of 11
      Id. at 18. The court further concluded that DCS had a satisfactory plan in place

      for the care and treatment of the Child and that termination of Father’s parental

      rights was in the Child’s best interests. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[5]   Father appeals the trial court’s termination of his parental rights over the Child.

      The court’s termination order recites findings of fact and conclusions thereon

      following an evidentiary hearing before the court. As our Supreme Court has

      explained, in such circumstances


              [w]e affirm a trial court’s termination decision unless it is clearly
              erroneous; a termination decision is clearly erroneous when the
              court’s findings of fact do not support its legal conclusions, or
              when the legal conclusions do not support the ultimate decision.
              We do not reweigh the evidence or judge witness credibility, and
              we consider only the evidence and reasonable inferences that
              support the court’s judgment.


      M.H. v. Ind. Dep’t of Child Servs. (In re Ma.H.), 134 N.E.3d 41, 45 (Ind. 2019)

      (citations omitted).


[6]   “Parents have a fundamental right to raise their children—but this right is not

      absolute.” Id. “When parents are unwilling to meet their parental

      responsibilities, their parental rights may be terminated.” Id. at 45-46. To

      terminate parental rights, Indiana Code Section 31-35-2-4(b)(2) (2019) requires

      DCS to demonstrate, as relevant here, that “[t]here is a reasonable probability


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020   Page 7 of 11
      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.”


                  Issue One: Whether Finding 28 Is Supported By The Record

[7]   Father first challenges the trial court’s finding number 28. We will not set aside

      the trial court’s factual findings unless those findings are clearly erroneous. Ind.

      Trial Rule 52(A). A finding is clearly erroneous “when there is no evidence

      supporting the finding[] . . . .” Moriarity v. Ind. Dep’t of Nat. Res., 113 N.E.3d

      614, 622 (Ind. 2019). In our review, “we consider only the evidence and

      reasonable inferences that support the court’s judgment.” In re Ma.H, 134

      N.E.3d at 45.


[8]   In its finding number 28, the court found, in relevant part, that “Therapist

      Snider opined that Father is not benefitting from services.” Appellant’s App.

      Vol. 2 at 17. According to Father, the court’s statement “is not supported by

      the record.” Appellant’s Br. at 13. But Father is incorrect. In his testimony,

      Snider stated that he “find[s] it hard to say that [Father is] benefitting” from

      addiction-based services in light of “the fact that [Father is] not even abstinent.”

      Tr. Vol. II at 156. And Father does not dispute that he continued to use illegal

      substances throughout the proceedings before the trial court. Accordingly, we

      cannot say that the court’s finding that Father was not benefitting from services

      is clearly erroneous.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020   Page 8 of 11
                         Issue Two: Whether The Conditions That Resulted
                                 In Removal Will Not Be Remedied

[9]    We next consider Father’s argument that the trial court clearly erred when it

       concluded that the conditions that resulted in the Child’s removal will not be

       remedied. In determining whether the conditions that led to a child’s

       placement outside the home will not be remedied, a trial court is required to (1)

       ascertain what conditions led to the child’s removal or placement and retention

       outside the home; and (2) determine whether there is a reasonable probability

       that those conditions will not be remedied. R.C. v. Ind. Dep’t of Child Servs. (In re

       K.T.K.), 989 N.E.2d 1225, 1231 (Ind. 2013). Here, there is no dispute that the

       Child was removed from the care of her mother due the mother’s domestic

       violence and drug use, and DCS did not then place the Child with Father

       because of Father’s own drug use and unstable housing and because Father had

       known of the mother’s domestic-violence issues yet permitted the Child to be in

       her home anyway.


[10]   In order to determine whether there is a reasonable probability that the

       conditions that resulted in removal will not be remedied, the court should assess

       a parent’s “fitness” at the time of the termination hearing, taking into

       consideration any evidence of changed conditions. E.M. v. Ind. Dep’t of Child

       Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). The court must weigh any

       improvements the parent has made since removal against the parent’s “habitual

       patterns of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” Id. When making such decisions, courts should


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020   Page 9 of 11
       consider evidence of a “parent’s prior criminal history, drug and alcohol abuse,

       history of neglect, failure to provide support, lack of adequate housing, and

       employment.” Evans v. St. Joseph Cty. Off. of Fam. & Child. (In re A.L.H.), 774

       N.E.2d 896, 990 (Ind. Ct. App. 2002).


[11]   The court did not clearly err when it concluded that the conditions that resulted

       in Child’s placement away from Father will not be remedied. The evidence

       demonstrates that Father continued to test positive for illegal substances

       throughout the proceedings before the trial court. Indeed, Father does not

       dispute that he tested positive for cocaine on at least two different occasions

       after DCS had filed its petition for the termination of his parental rights. Father

       also failed to successfully complete recommended services. He repeatedly

       failed to comply with services during the underlying CHINS proceedings and

       had only recently begun participating in services near the time of the fact-

       finding hearing on the termination petition. Moreover, as Snider testified,

       Father was not benefitting from services. And while Father asserts on appeal

       that he has stable housing with his parents, he does not dispute the trial court’s

       finding that “Father’s parents have also had issues with regard to child neglect.”

       Appellant’s App. Vol. 2 at 17.


[12]   The evidence supports the trial court’s findings, and the findings support the

       court’s conclusion that the conditions that resulted in the Child’s removal will

       not be remedied. Father’s argument on appeal is simply a request for this Court

       to reweigh the evidence, which we cannot do. The trial court did not clearly err

       when it concluded that there is a reasonable probability that the conditions that

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020   Page 10 of 11
       resulted in the Child’s removal or the reasons for placement outside of Father’s

       home will not be remedied, and we affirm the trial court’s termination of

       Father’s parental rights over Child.


[13]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1465 | January 24, 2020   Page 11 of 11
