MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Dec 16 2016, 8:58 am

regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         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
Steven Knecht                                            Gregory F. Zoeller
Vonderheide & Knecht, P.C.                               Attorney General of Indiana
Lafayette, Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 16, 2016
of the Parent-Child Relationship                         Court of Appeals Case No.
of M.J.P. & M.L.P. (Children)                            79A05-1605-JT-959
and S.M. (Mother);                                       Appeal from the Tippecanoe
                                                         Superior Court
S.M. (Mother),                                           The Honorable Thomas K.
Appellant-Respondent,                                    Milligan, Senior Judge
                                                         Trial Court Cause No.
        v.                                               79D03-1510-JT-82
                                                         79D03-1510-JT-83
The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016       Page 1 of 16
      May, Judge.


[1]   S.M. (“Mother”) appeals the involuntary termination of her parental rights to

      her two children, M.J.P. and M.L.P. (collectively, “Children”). Mother raises

      three issues, two of which are dispositive:


                   (1) whether the court’s findings of fact support the court’s conclusion
                       of law that there was a reasonable probability the conditions
                       resulting in Children’s removal or reasons for placement outside
                       Mother’s home would not be remedied; and

                   (2) whether the court’s findings of fact support the court’s conclusion
                       of law that termination was in Children’s best interest.

      We affirm.



                              Facts and Procedural History
[2]   M.J.P. was born to Mother and J.P. (“Father”) on March 20, 2004, and M.L.P

      was born to Mother and Father on November 23, 2005. Father has been in and

      out of prison for various drug convictions, and has had only a small role in

      Children’s lives. 1 Mother and Father divorced in 2009, and Mother married

      T.M. in 2010. T.M. never had parental rights to Children, but Children

      considered T.M. their father because he had a larger role in their lives than




      1
       Father failed to appear for the majority of the CHINS and termination proceedings or to comply with any
      of the trial court’s orders resulting therefrom. He does not participate in this appeal. As such, we omit facts
      pertinent to Father in this opinion.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016             Page 2 of 16
      Father. In March 2014, Mother and T.M. separated. Mother then began

      dating B.S. (“Boyfriend”) and, in April 2014, moved in with him.


[3]   On June 9, 2014, DCS received a report that police found Mother and

      Boyfriend under the influence of heroin in their home with Children present.

      DCS took Children into protective custody on an emergency basis. On June

      11, 2014, DCS filed a petition alleging Children were Children in Need of

      Services (“CHINS”) based on Mother’s illegal drug use. The court granted

      temporary custody of Children to the State. Children were initially placed in

      their maternal great grandmother’s care, but were moved to the care of their

      maternal grandfather (“Maternal Grandfather”) and his girlfriend shortly

      thereafter. On July 30, 2014, the court held a fact finding hearing and

      adjudicated Children CHINS. At that time, Children remained in Maternal

      Grandfather’s care.


[4]   On August 27, 2014, the court held a dispositional hearing. Following the

      hearing, the court entered a disposition order for Children to be made wards of

      the State, remain in their current care placement with Maternal Grandfather,

      and participate in mental health assessments. The court also entered a parental

      participation decree that ordered Mother to participate in services including

      substance abuse treatment, home-based case management, drug screens, and

      supervised visitation with Children.


[5]   Throughout October and November 2014, Mother participated in intensive

      outpatient substance abuse programs (“IOP”) at Wabash Valley Alliance


      Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 3 of 16
      (“Wabash”) and Home-Based/Goal Focused Services for Children and

      Families (“HGCF”). However, both Wabash and HGCF reported Mother

      often cancelled, missed sessions without notice or reason, and slept through

      group therapy sessions. Mother and Children were participating in supervised

      visitations at DCS offices during this time.


[6]   On November 19, 2014, DCS family case manager Andrea Allen (“FCM

      Allen”) made separate, unannounced visits to M.J.P. and M.L.P.’s respective

      schools. After meeting with them, FCM Allen reported both children became

      tearful and expressed concern about Mother’s drug use and her relationship

      with Boyfriend. FCM Allen also noted M.L.P. was behind in school, but

      M.J.P. was doing well in school.


[7]   On November 24, 2014, the court held a permanency review hearing. The

      court noted Mother did not have independent housing and was relying on

      family and friends. It found Children’s current placement with Maternal

      Grandfather was still in Children’s best interest but that “there [was] still a

      probability of success” in attaining the objective of its dispositional decree,

      which was reunification. (Ex. Vol. 1 at 37.) 2 The court ordered Mother to

      continue participating in services, remain drug and alcohol free, and undergo all




      2
       The trial court clerk’s failure to number the pages of the Exhibit volumes greatly hindered our review of the
      record. We cite the page numbers as they appear consecutively in the PDF format of the Electronic Record.
      See Ind. Appellate Rule 29(A) (requiring the Exhibits be filed in accordance with Appendix A(2)(a), which
      provides: “Each volume of the Transcript shall be independently and consecutively numbered at the bottom.
      Each volume shall begin with numeral one on its front page.”).

      Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016           Page 4 of 16
      random drug screens requested by DCS or service providers. Mother’s

      visitation with Children was suspended until Mother submitted urine screens

      that did not indicate use of methamphetamine.


[8]   Mother was unsuccessfully discharged from both Wabash and HGCF at the

      beginning of December 2014 for failure to comply with the programs. On

      December 3, 2014, DCS requested a show cause hearing due to Mother’s

      noncompliance with therapy and her continued methamphetamine use. On

      January 14, 2015, the court held a hearing. The court noted Mother tested

      positive for methamphetamine and amphetamine on November 18, 2014.

      Mother admitted using illegal drugs, failing to participate in services, and being

      discharged from services. The court found Mother in contempt for failing to

      remain drug and alcohol free and failing to submit random drug screens as

      required by the parental participation decree. Mother reported to Tippecanoe

      County Jail. The court ordered the hearing to be continued on February 23,

      2015.


[9]   Sometime in late December 2014 or early January 2015, T.M. indicated he

      wanted to be the relative placement for Children. DCS visited Children at

      T.M.’s home in January 2015. Children appeared to be “comfortable and

      happy” and indicated that they would like to live with T.M. (Id. at 130.)

      Children were removed from Maternal Grandfather’s care in January 2015 and

      placed with T.M. However, later that month, T.M. was in a car accident and

      arrested for driving under the influence of alcohol. M.J.P. was in the car with



      Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 5 of 16
       T.M. at the time of the accident, and as a result, Children were removed from

       T.M.’s care and placed in a licensed foster home.


[10]   Following a motion by DCS, the court held the continued show cause hearing

       on February 2, 2015, instead of February 23, 2015. The court noted Mother

       was nineteen weeks pregnant with Boyfriend’s child and continued to use

       methamphetamine and other drugs, as evidenced by a drug screen on January

       20, 2015. The court further noted Mother was hospitalized due to a blood

       infection and subsequently left the hospital against medical advice. The court

       ordered Mother to remain in the Tippecanoe County Jail until she could be

       admitted to the Maternal Fetal Medicine Unit in Indianapolis.


[11]   On February 6, 2015, the court, on its own motion, released Mother from the

       Tippecanoe County Jail on her own recognizance while she awaited a vacancy

       at the Maternal Fetal Medicine Unit. The court ordered the Tippecanoe

       County Sheriff to transport Mother to the North Central Indiana YWCA’s

       “Breaking Free” Dual Treatment program in South Bend, Indiana. Mother

       began the inpatient dual treatment substance abuse and domestic violence

       program on February 9, 2015, and completed it on April 2, 2015. After being

       released from the program, Mother participated in outpatient substance abuse

       services and consistently provided clean drug screens. As a result of Mother’s

       progress, DCS resumed supervised visitation between Mother and Children in

       April 2015.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 6 of 16
[12]   On June 6, 2015, Mother gave birth to Z.S. Because Mother had been making

       substantial progress in services and visitation, and was remaining drug and

       alcohol free, DCS did not remove Z.S. from Mother’s care. Furthermore,

       Mother agreed to a safety plan requiring her to keep Z.S. away from Boyfriend.

       DCS continued regular home-based case management and therapy services

       with Mother after Z.S. was born.


[13]   On the evening of June 27, 2015, Mother was caring for Z.S. while cleaning out

       her recently deceased mother’s home. Mother arranged for a friend to babysit

       Z.S., and then Mother met an acquaintance at a gas station to purchase heroin.

       Mother then returned to Boyfriend’s house where she overdosed. 3 Boyfriend

       drove Mother to the emergency room, and she was hospitalized. When Mother

       awoke in the hospital, she learned Z.S. had been left in Boyfriend’s care in

       violation of the court-ordered safety plan. The next day, while Mother was still

       in the hospital, Z.S. died in Boyfriend’s care because Boyfriend was under the

       influence of heroin and fell asleep next to Z.S., causing the infant to suffocate.


[14]   Immediately following Z.S.’s death, DCS moved for the court to suspend

       Mother’s visitation with Children due to Mother’s relapse and the subsequent

       death of Z.S. On June 29, 2015, the court held a hearing on DCS’s motion and

       suspended visitation. DCS attempted to coordinate services for Mother to help




       3
        The record contains multiple, conflicting accounts of the night Mother relapsed. The facts here reflect
       Mother’s February 4, 2016, testimony of the incident.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016          Page 7 of 16
       her process the death of Z.S. Mother initially participated, but completely

       stopped attending any services in July 2015.


[15]   Mother moved to reinstate her visitation with Children on July 27, 2015. On

       August 19, 2015 the court held a visitation and permanency review hearing.

       Paul Stamm, Children’s therapist, testified at the hearing and recommended

       “visitations re-commence at a therapeutically supervised level in approximately

       one to two months.” (Ex. Vol. 1 at 81-82.) He stated Children were presently

       “very angry and depressed over the death of their sibling, over Mother’s

       continued drug use[,] and [over] her ongoing relationship with [Boyfriend].”

       (Id.) Mr. Stamm noted Children blamed Mother for Z.S.’s death and were

       living “in fear of [Boyfriend.]” (Id.) The court noted Mother was living with

       Boyfriend at T.M.’s home, admitted using methamphetamine seven days before

       the hearing, refused to undergo a drug screening on July 8, 2015, and was not

       participating in any therapeutic services. The court ordered Mother could

       resume therapeutic visitation on October 1, 2015, pending three clean drug

       screens. The court set a permanency review hearing for October 21, 2015.


[16]   On October 21, 2015, DCS filed its Verified Petition for Termination of

       Parental Rights. The trial court held fact finding hearings on DCS’s petition on

       January 13, 2016, and February 4, 2016. On January 13, 2016, the court heard

       testimony from M.J.P., case workers, Mother, and Father. DCS case manager

       Sally Messmer testified that “the parents have had ample time to work towards

       that goal of reunification and [M.J.P.] and [M.L.P.] need permanency, they

       need a final decision and [to] start working towards their forever home.” (Tr.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 8 of 16
       Vol. 2 at 279.) Additionally, M.J.P. testified “that [she] [did not] want to go

       back with [her] mother.” (Tr. Vol. 1 at 82.) On February 4, 2016, Mother

       testified she had been sober since Christmas of 2015, and had started her own

       housecleaning business, but was still living with Boyfriend. She admitted the

       last time she had undergone a drug screening was prior to Z.S.’s death in June

       2015 and the last time she went to therapy was July 2015. As of the date of the

       final termination hearing, Children had not seen Mother since July 2015.


[17]   On April 8, 2016, the court terminated the parental rights of Mother and

       Father. The court concluded there was a reasonable probability the conditions

       resulting in Children’s removal or reasons for continued placement outside the

       home would not be remedied, the continuation of a parent-child relationship

       posed a threat to the well-being of Children, termination was in Children’s best

       interests, and DCS had a satisfactory plan of adoption for the care and

       treatment of Children following termination of parental rights.



                                  Discussion and Decision
[18]   “The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children.” In re

       G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied. To terminate a parent’s

       rights, the State must file a petition in accordance with Indiana Code § 31-35-2-

       4 and then prove the allegations therein by clear and convincing evidence. Id.

       at 1260-61. If the court finds the allegations in the petition are true, it must



       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 9 of 16
       terminate the parent-child relationship. Ind. Code § 31-35-2-8; In re N.G., 51

       N.E.3d 1167, 1170 (Ind. 2016).


[19]   In relevant part, a petition to terminate the parent-child relationship 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.

       Ind. Code § 31-35-2-4(b)(2). Because our legislature wrote subsection (B) in the

       disjunctive, a trial court needs to find only one of the three requirements

       established by clear and convincing evidence before terminating parental rights.

       In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), reh’g denied, trans. denied,

       cert. denied 534 U.S. 1161 (2002). The trial court must enter findings of fact to

       support each of its conclusions as to those allegations. Ind. Code § 31-35-2-8(c).


[20]   We review termination of parental rights with great deference. In re K.S., D.S.,

       & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 10 of 16
       evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

       Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

       reasonable inferences most favorable to the judgment. Id. We apply a two-

       tiered standard of review: we determine first whether the evidence clearly and

       convincingly supports the findings, and second whether the findings clearly and

       convincingly support the conclusions. In re E.M., 4 N.E.3d 636, 642 (Ind.

       2014). However, where a party challenges the judgment but does not challenge

       the findings of fact as unsupported by the evidence, we look only to the findings

       to determine whether they support the judgment. Smith v. Miller Builders, Inc.,

       741 N.E.2d 731, 734 (Ind. Ct. App. 2000). We will set aside a judgment

       terminating a parent’s rights only if it is clearly erroneous. In re L.S., 717

       N.E.2d at 208.


                        1. Reasonable Probability Conditions Not Remedied

[21]   Mother asserts the trial court erred in concluding there was a reasonable

       probability the conditions that resulted in Children’s removal or remaining out

       of the home would not be remedied. We disagree with Mother.


[22]   The condition that resulted in Children’s removal from Mother’s home was

       Mother’s heroin use with Boyfriend while Children were in their care. The trial

       court concluded “in spite of the services provided by DCS and in spite of efforts

       made to reunify the children,” there was a reasonable probability the conditions

       that resulted in removal of Children or reasons for continued placement outside

       the home would not be remedied. (App. Vol. II at 21.) In support of this

       conclusion, the trial court found:
       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 11 of 16
               DCS made efforts to address the issues that gave rise to
               Children’s removal. Mother failed to follow the
               recommendations from her mental health assessment and
               substance abuse assessment. Mother has not completed IOP, has
               cooperated with taking drug screens from time to time, failed to
               meet case management goals and has not attended therapy since
               July 2015.


       (Id. at 17.) The trial court pointed out “the progress of this case really occurred

       between February of 2015 and July of 2015[,]” but at the time of the

       termination hearing, Mother had not attended therapy or seen Children since

       July 2015. (Id.) Furthermore, the court noted at the time of the termination

       hearing, Mother was still residing with Boyfriend, “who [was] known to be a

       chronic drug user and abuser[,]” (id.), and Mother “remain[ed] at risk for

       relapse and use because of her continued association with him.” (Id.)


[23]   Mother does not challenge any of these findings, but argues, “[w]ith more time

       and work, Mother can remedy the conditions resulting in the removal of her

       children from her care.” (Appellant’s Br. at 22.) She also claims that, while she

       is still in a relationship with Boyfriend, “she would end that [relationship] if her

       children were to be in her care.” (Id. at 21.) While we acknowledge Mother’s

       good intentions, her intentions cannot serve as a basis for reversal. See In re

       B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008) (“[I]f the evidence and inferences

       support the trial court’s decision, we must affirm.”), trans. denied.


[24]   Additionally, as the trial court found, Mother “had a couple of efforts at

       completing IOP,” but failed to successfully complete any of the IOP programs,


       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 12 of 16
       and failed multiple drug tests throughout the case. (App. Vol. II at 17.) Based

       on the court’s unchallenged findings, we cannot say the court erred in

       concluding there was a reasonable probability the conditions would not be

       remedied as required under Indiana Code § 31-35-2-4(b)(2)(B)(i). 4


                                          2. Best Interests of Children

[25]   Mother asserts the court erred in concluding termination of the parent-child

       relationship was in the best interests of Children. We first note that deciding

       whether termination of parental rights is in the children’s best interests is one of

       the most difficult determinations because it “places the children’s interests in

       preserving the family into conflict with their need for permanency.” In re E.M.,

       4 N.E.3d 636, 647 (Ind. 2014). The State must make reasonable efforts “to

       preserve and reunify families,” Ind. Code § 31-34-21-5.5(b), because it promotes

       “not just parents’ fundamental liberty interest in raising their own children . . .

       but also the children’s best interests.” In re E.M., 4 N.E.3d at 647. However,

       “children also have a paramount need for permanency,” which is a “central

       consideration in determining children’s best interests.” Id. at 647-648.


[26]   The trial court made a number of findings to support its conclusion that

       termination of the parent-child relationship was in Children’s best interests.




       4
         Mother also argues DCS did not present sufficient evidence the continuation of the parent-child relationship
       posed a threat to the well-being of Children. However, as DCS presented sufficient evidence the conditions
       under which Children were removed would not be remedied, we need not address that argument. See In re
       L.S., 717 N.E.2d at 209 (because statute written in disjunctive, court needs to find only one requirement to
       terminate parental rights).

       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016         Page 13 of 16
The trial court noted Mother’s relapse in June 2015 and the events that

followed. Specifically, the trial court found “Mother used heroin and [as] a

result of that use knew she could not care for [Z.S.] and handed him off to a

friend[.]” (App. Vol. II at 18.) The court noted Z.S. ended up in the care of

Boyfriend, which resulted in Z.S.’s death. The trial court also found:

        21. The children worked in therapy regarding issues and
        boundaries, the reason for DCS involvement, the death of a
        sibling, lack of parental involvement, instability and abuse due to
        parental substance use, and issues surrounding permanency.
        Those issues are more than any child should have to deal with.
        Each of those [is] a traumatic event and then to have them
        stacked one on top of the other is nearly impossible for a child to
        deal with. The children have worked with their therapist and
        have improved to the point to where [M.J.P.] wanted to be able
        to testify in Court, to have her say and confront her parents
        regarding her anxiety, anger, and fear. The children, as
        mentioned above, have suffered physical and emotional trauma
        that have resulted in fear of their Mother, Father, and
        [Boyfriend]. They are aware that [Boyfriend] has continued
        using drugs and believe that Mother is still using drugs. [M.J.P.],
        in particular, is keenly aware of her Mother’s continued poor
        choices. There has been no contact between Mother and the
        children since the end of July 2015. Mother continues to be
        dependent due to relapse and substance issues. Also Mother
        continues to make poor choices with men as evidenced by
        continuing to reside with [Boyfriend], who is ultimately
        responsible for their sibling’s death. There is also a history of
        domestic violence that neither parent has addressed during the
        course of this case. The result is that the children are obviously
        conflicted because they love their Mother but don’t feel they can
        trust her.




Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 14 of 16
               22. . . . The DCS testament [sic] is that if parents were to start
               now and work diligent[ly] in pursuant [sic] of their services and
               do everything they were supposed to do, that it would be at least
               six (6) months to a year before they could be in a position to
               parent these children. The children do not want to return to their
               parents, are old enough and knowledgeable enough to know
               what happened, but they just don’t understand why. CASA
               reports that based on the history of abuse and neglect in this case,
               there is no reason for these children to wait to find a loving and
               caring family where they can have a life that does not mirror
               their Mother’s or their Father’s.


       (Id. at 21.)


[27]   These findings support the court’s conclusion that termination was in

       Children’s best interests. While Mother claims on appeal that she would end

       her relationship with Boyfriend if Children were to be in her care, there is

       nothing in the record to support her claim. Nor is there anything to support

       Mother’s overall argument that she has potential to be a good mother. In

       contrast, the record is replete with evidence showing Mother’s inability to

       complete the steps necessary for reunification with her children. “[C]hildren

       cannot wait indefinitely for parents to work toward preservation or

       reunification – and courts ‘need not wait until the child is irreversibly harmed

       such that the child’s physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship.’” In re E.M., 4

       N.E.3d at 648. We cannot say the trial court erred in concluding that

       termination is in Children’s best interests.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 15 of 16
                                               Conclusion
[28]   The trial court’s unchallenged findings support its conclusions. Accordingly,

       we affirm its decision to terminate Mother’s parental rights.


[29]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-JT-959 | December 16, 2016   Page 16 of 16
