MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                        Jan 16 2019, 6:12 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
Don R. Hostetler                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          January 16, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of A.W., B.W., and                           18A-JT-1488
D.W. (Minor Children), and                                Appeal from the Marion Superior
D.W. (Father),                                            Court Juvenile Division
Appellant-Respondent,                                     The Honorable Marilyn A.
                                                          Moores, Judge
        v.                                                The Honorable Gary Chavers,
                                                          Judge Pro Tempore
Indiana Department of Child                               The Honorable Larry Bradley,
Services and Child Advocates,                             Magistrate
Inc.
                                                          Trial Court Cause No.
Appellees-Petitioners                                     49D09-1708-JT-702, 49D09-1708-
                                                          JT-705, 49D09-1708-JT-706




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019                      Page 1 of 17
      Altice, Judge.


                                                  Case Summary


[1]   D.W. (Father) appeals the involuntary termination of his parental rights to his

      three children. On appeal, Father argues that the court’s termination order is

      not supported by sufficient evidence.


[2]   We affirm.


                                         Facts & Procedural History


[3]   Father and S.T. (Mother)1 have three children: A.W., born in 2008; D.W.,

      born in 2012; and B.W., born in 2014 (collectively, the Children). The

      Department of Child Services (DCS) became involved with the family in May

      2016 after a police officer observed Father and Mother buying heroin with

      D.W. and B.W. in the car. A police officer initiated a traffic stop. The officer

      found narcotics in Mother’s bra and determined that Father was driving on a

      suspended license. The officer also noted that D.W. was not restrained in a car

      seat and was “wearing a sagging urine filled diaper and was shoeless” and that

      both children were covered in dirt. Exhibits at 21. Father was arrested as a

      result of this incident, and D.W. and B.W. were placed in foster care.




      1
        Mother’s parental rights were not terminated by the order terminating Father’s parental rights. We will
      state the facts as they pertain to the termination of Father’s parental rights.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019                 Page 2 of 17
[4]   On May 17, 2016, DCS filed a verified petition alleging D.W. and B.W. to be

      children in need of services (CHINS). On July 11, 2016, DCS filed another

      CHINS petition after learning that Father had a third child, A.W., who was

      living with Father’s mother. Father failed to appear at the initial hearing on the

      CHINS petition relating to A.W., and the juvenile court ordered removal of

      A.W. from Father’s care and authorized placement in foster care with paternal

      grandmother. On August 10, 2016, the juvenile court entered its order

      adjudicating the Children CHINS based on Father’s request for “assistance

      maintaining … sobriety” and the allegations in the CHINS petitions. Id. at 32.


[5]   At a dispositional hearing held on September 7, 2016, the juvenile court ordered

      Father to participate in services to address substance abuse and instability,

      including home-based therapy, home-based case management, to submit to a

      substance abuse assessment, and to submit to random drug screens. The court

      also ordered that A.W. be removed from her parental grandmother’s home due

      to safety concerns and placed in foster care.2 Following a May 10, 2017

      permanency hearing at which Father did not appear, the juvenile court changed

      the permanency plan from reunification to adoption for the Children.               DCS

      filed petitions for the involuntary termination of Father’s parental rights on

      August 8, 2017. On May 17, 2018, the juvenile court held a termination of

      parental rights hearing. The court issued its order terminating Father’s parental




      2
          A.W. was placed in the same home as D.W. and B.W.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 3 of 17
rights to the Children on May 25, 2018. The court made the following findings

in support thereof:


        10. Home based therapy was referred to address any underlying
        needs, and to help in alleviating substance abuse by learning
        coping skills.


        11. Therapy would also have addressed how substance abuse
        relates in regards to the [C]hildren. [Father] did not strongly
        agree that substance abuse affected his parenting.


        12. Although therapy was referred at least three times, no
        monthly progress reports were received from service providers.


        13. Erica Terry worked with [Father] as his home based case
        manager between July of 2016 to March of 2017.


        14. Ms. Terry helped [Father] with filling out employment
        applications and transportation. She also tried to help him
        address his heroin addiction.


        15. [Father] worked “here and there” at temporary jobs for a
        total of one week while Ms. Terry was the case manager.


        16. [Father] had unstable housing during this time, living with his
        mother, the [C]hildren’s maternal grandmother, and in a hotel,
        none which were appropriate for the [C]hildren. At the time of
        trial, he was residing with his grandmother in a two-bedroom
        residence.


        17. Case management was closed due to Ms. Terry not being
        able to locate [Father]. She reported no progress had been made


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 4 of 17
        in addressing issues and felt that additional time would not help.
        [Father] did not do things on his own.


        18. The major condition to be addressed is [Father]’s substance
        abuse which included heroin use before and during the CHINS
        cases.


        19. [Father] went into a five-day detoxification program in July
        of 2016, but failed to follow up on recommendations. He
        relapsed and was readmitted to detoxification in August of 2016.
        He left after three days and failed to follow up.


        20. [Father] may have done another detoxification in the fall of
        2017.


        21. [Father] did another detoxification program from April 18,
        2018 until April 30, 2018. He received a diagnosis at discharge
        of Mood Disorder, Psychosis, and Opioid and Alcohol
        Dependence.


        22. [Father] was to follow up with a mental health intake on May
        1, 2018. He failed to do so. Psychiatric medical management
        and outpatient drug treatment were pending the May 1, 2018
        intake which was not followed up on.


        23. Random urine screens were referred in June of 2016. As of
        April of 2017, [Father] had submitted to one screen.


        24. Home Based Case Manager Terry would transport [Father]
        to submit to screens but he would mostly fail to get out of the car.


        25. [Father] did screens inconsistently in the fall of 2017 and
        early 2018.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 5 of 17
        26. On screens taken between December 14, 2017 and February
        27, 2018, [Father] tested positive for illegal drugs twelve times.
        The drugs differed at times but included methamphetamine,
        amphetamine, THC, and Buprenorphine.


        27. [Father] has failed to undergo a drug screen since March 2,
        2018.


        28. [Father] testified he has overcome his addictions, and does
        not need drug services.


        29. [Father] presented in court with a poor memory and
        somewhat scattered thoughts. This, coupled with [Father]
        relying on providers and family raise serious concerns about
        [Father]’s ability to parent three children.


        30. The [C]hildren have been in therapy since September of 2017,
        and have progressed to the point that goals of processing trauma
        and coping skills have been met.


        31. The [C]hildren are together in a preadoptive foster home
        where they have been observed as comfortable and have
        integrated into the preadoptive family.


        32. The Court suspended [Father]’s parenting time on May 10,
        2017, when the [C]hildren’s plan for permanency was changed to
        adoption, at which time the Court found that neither parent had
        made any meaningful or sustainable progress toward
        reunification.


        33. The Guardian ad Litem and [C]hildren’s therapist never
        recommended that parenting time be reinstated. The therapist
        was concerned that parenting time would be traumatic for the
        [C]hildren and they could regress.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 6 of 17
        34. There is a reasonable probability that the conditions that
        resulted in the [C]hildren’s removal and continued placement
        outside the home will not be remedied by [F]ather who has not
        followed up with drug treatment recommendations after
        attending detoxification at least three times. He has not
        successfully participated in services to overcome housing and
        employment instability. The [C]hildren’s CHINS cases have
        been open two years and [Father] has not made sustainable
        progress during that time.


        35. There is a reasonable probability that the continuation of the
        parent-child relationship poses a threat to the [C]hildren’s well-
        being in that it would pose as a barrier to obtaining permanency
        for them through an adoption when their [F]ather is unable to
        offer permanency and parent in a safe and stable environment, or
        meet the [C]hildren’s needs.


        36. Based on the length of time the CHINS cases have been
        pending, the services offered but not completed, and the question
        of whether it would be safe to return the [C]hildren, the
        Guardian ad Litem, Jessica Sherman, recommends termination
        of parental rights so the [C]hildren can move on with their lives.
        Ms. Sherman believes that giving [Father] additional time would
        interfere with permanency and create more stress and anxiety for
        the [C]hildren.


        37. The [DCS] family case manager does not feel that issues
        have been remedied, or will be. She also feels that the [C]hildren
        have a great familial bond where they reside.


        38. The [C]hildren’s therapist believes it would be detrimental if
        the [C]hildren were removed from their placement. The
        [C]hildren need stability and consistency.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 7 of 17
      Appellant’s Appendix Vol. II at 41-2. Father now appeals. Additional facts will

      be provided as necessary.


                                           Discussion & Decision


[6]   Before we consider Father’s arguments that the evidence was insufficient to

      support termination of Father’s parental rights, we first address his claim that

      the juvenile court could not rely on the results of his drug tests because DCS

      could not establish a reliable chain of custody. Specifically, Father argues that

      the chain of custody for his drug tests is unreliable because (1) the collection

      technician left specimens unattended in his car, (2) the specimens were left in a

      FedEx drop box with no testimony regarding FedEx procedures, and (3) the

      laboratory toxicologist did not know who unsealed Father’s samples prior to

      testing.


[7]   We begin by noting that DCS is not required to establish a perfect chain of

      custody. See Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). “To establish a

      proper chain of custody, the State must give reasonable assurances that the

      evidence remained in an undisturbed condition.” Id. (citing Cliver v. State, 666

      N.E.2d 59, 63 (Ind. 1996)). “[O]nce the State ‘strongly suggests’ the exact

      whereabouts of the evidence, any gaps go to the weight of the evidence and not

      to admissibility.” Id. (quoting Wrinkles v. State, 690 N.E.2d 1156, 1160 (Ind.

      1997)). Moreover, there is a presumption of regularity in the handling of

      evidence by officers, and there is a presumption that officers exercise due care

      in handling their duties. Id. To mount a successful challenge to the chain of


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 8 of 17
      custody, one must present evidence that does more than raise a mere possibility

      that the evidence may have been tampered with. Id.


[8]   The collection technician who collected specimens from Father testified that he

      would leave specimens in his car while collecting specimens from other

      individuals, but that he was the only person who had access to his car, which

      was locked at all times. The technician further described the process in which

      he collected the samples and his handling of the samples thereafter. The

      technician would apply gloves, open a sealed test kit, and label the collection

      tubes. The technician would then open the mouth swab and, without touching

      the swab itself, direct the donor to pull the swab out and apply it to their mouth

      until it turned blue indicating a sufficient sample of saliva had been collected.

      The technician would then put the swab in a collection tube and seal it. The

      sealed tube would then be put into a bag that was then sealed and placed into a

      FedEx bag that was sealed as well. To ship the samples to the laboratory, the

      technician would drop the sealed bags at a FedEx drop box. The technician

      testified that he followed this procedure for all drug tests and that he had

      collected approximately 1800 specimens during his employment with the drug

      testing company.


[9]   Once the specimens arrived at the laboratory, an employee inspected the

      packaging and specimen to ensure that all seals remained intact. If there was

      evidence of tampering, such would have been noted on the laboratory report.

      Additionally, a forensic toxicologist and custodian of records with the

      laboratory testified that there were no notations indicating that Father’s

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 9 of 17
       specimens were compromised in any way and that the results were accurate.

       DCS’s evidence provides reasonable assurances that Father’s mouth swabs were

       undisturbed and that the results of the testing were accurate. See Culver v. State,

       727 N.E.2d 1062, 1067 (Ind. 2000) (finding that the State established a proper

       chain of custody when testimony revealed that blood samples were contained in

       a marked and sealed box that was intact when the forensic DNA examiner

       tested the evidence).


[10]   Father presented no evidence other than to imply a mere possibility that the

       samples may have been altered. DCS’s evidence established that Father’s

       specimens were handled and stored in such a way that it would be nearly

       impossible for someone to conceal the fact that the specimens were mixed up or

       had been tampered with. Father’s arguments go to the weight of the evidence,

       not its admissibility. The juvenile court properly admitted Father’s drug test

       results into evidence.


[11]   Having determined that the trial court could rely on the drug test results, we

       now turn to Father’s arguments that the evidence was insufficient to support the

       involuntary termination of his parental rights. When reviewing the termination

       of parental rights, we will not reweigh the evidence or judge the credibility of

       the 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. In deference to the trial court’s unique position

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

       relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 10 of 17
       Ct. App. 1999), trans. denied. Thus, if the evidence and inferences support the

       decision, we must affirm. Id.


[12]   The trial court entered findings in its order terminating Father’s parental rights.

       When the trial court enters specific findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

       evidence supports the findings, and second, we determine whether the findings

       support the judgment. Id. “Findings are clearly erroneous only when the

       record contains no facts to support them either directly or by inference.” Quillen

       v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

       only if the findings do not support the court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[13]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 11 of 17
[14]   Father argues that the evidence was insufficient to support the trial court’s

       termination of his parental rights. Before an involuntary termination of

       parental rights may occur in Indiana, DCS is required to allege and prove by

       clear and convincing evidence, among other things:


               (B) that one (1) of the following is true:


                        (i) There is a reasonable probability that the conditions
                        that resulted in the child’s removal or the reasons for
                        placement outside the home of the parents will not be
                        remedied.


                        (ii) There is a reasonable probability that the continuation
                        of the parent-child relationship poses a threat to the well-
                        being of the child.


                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child and that there is a

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

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


[15]   Father challenges the court’s findings as to subsection (b)(2)(B)(i) and (ii). We

       note that DCS was required to establish only one of the requirements of

       subsection (b)(2)(B) by clear and convincing evidence before the trial court

       could terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct.

       App. 2003). Here, the trial court found that DCS presented clear and

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 12 of 17
       convincing evidence that there is a reasonable probability the conditions

       resulting in the Children’s removal or continued placement outside Father’s

       care will not be remedied and that continuation of the parent-child relationship

       poses a threat to the Children’s well-being. See I.C. § 31-35-2-1(b)(2)(B)(i), (ii).

       We focus our inquiry on the requirements of subsection (b)(2)(B)(i)—that is,

       whether there was sufficient evidence to establish a reasonable probability that

       the conditions resulting in the Children’s removal or continued placement

       outside Father’s care will not be remedied.


[16]   In making such a determination, the trial court must judge a parent’s fitness to

       care for his child(ren) at the time of the termination hearing, taking into

       consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

       (Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent’s

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation of the child. Id. In making this

       determination, courts may consider evidence of a parent’s prior criminal

       history, drug and alcohol abuse, history of neglect, failure to provide support,

       and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of

       Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.

       The court may also consider the parent’s response to the services offered

       through DCS. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,

       372 (Ind. Ct. App. 2007), trans. denied. “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

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 13 of 17
       reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d

       at 210.


[17]   Additionally, DCS need not provide evidence ruling out all possibilities of

       change; rather, it need establish only that there is a reasonable probability the

       parent’s behavior will not change. In re Involuntary Termination of Parent-Child

       Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust

       that delicate balance to the trial court, which has discretion to weigh a parent’s

       prior history more heavily than efforts made only shortly before termination.”

       In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Although a trial court is required to

       give due regard to changed conditions, this does not preclude a finding that a

       parent’s past behavior is the best predictor of his or her future behavior. Id.


[18]   The Children were removed from Father’s care because of Father’s admitted

       drug use and request for help to obtain sobriety. DCS also identified Father’s

       instability in housing and employment as reasons for removal of the Children.

       Throughout the CHINS proceedings, Father did not participate in a majority of

       the referred services for his substance abuse and demonstrated a pattern of

       relapsing after receiving treatment. As noted by the court in its order, Father

       attended a five-day detoxification program, but failed to follow up or comply

       with recommendations upon his release. A short time after his release, Father

       was readmitted into a detoxification program, but left after three days and again

       failed to comply with recommended services. Father points to his latest effort

       of participating in a detoxification program from April 18 until April 30, 2018,

       which is nearly two years since the Children were removed from his care and

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 14 of 17
       about one month before the termination hearing, as evidence that there is a

       reasonable probability that the conditions resulting in removal of the Children

       will change. Father’s history of drug use and multiple relapses, however, is

       more telling of the probability of whether circumstances will change, especially

       in light of Father’s minimal participation in other services.


[19]   Father also failed to submit to random drug screens. Even when his home-

       based case manager provided transportation so Father could submit to a drug

       screen, Father would refuse to get out of the car. Of the drug screens Father

       submitted, most of which were in late 2017 and early 2018, he tested positive

       for illegal drugs (i.e., methamphetamine, amphetamine, THC, and/or

       buprenorphine) twelve times. Father did not submit any drug screens after

       March 2, 2018.


[20]   Father wholly failed to comply with home-based therapy and home-based case

       management. Although his case manager made three referrals, Father did not

       participate in any services. With regard to employment, Father’s case manager

       helped Father apply for jobs, but over the course of nearly two years, Father

       worked for a total of one week. With regard to housing, Father lived with

       either his mother, Mother’s mother, or in a motel. Father’s case manager

       testified that none of these locations were suitable for the Children.


[21]   Father made little to no progress in changing the conditions that resulted in

       removal of the Children from his care. Father’s recent efforts at trying to

       maintain sobriety, obtain employment, and secure a place to live are


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 15 of 17
       overshadowed by Father’s lack of effort to address these issues in the nearly two

       years since the CHINS action was filed. As the court found, Father did not

       make any “sustainable progress.” Appellant’s Appendix Vol. II at 42. Father’s

       arguments to the contrary are simply requests to reweigh the evidence, which

       we will not do on appeal. The evidence was sufficient to support the court’s

       determination that there is a reasonable probability that the conditions that

       resulted in the removal of the Children will not be remedied.


[22]   Father also argues that the evidence was insufficient to support the trial court’s

       finding that termination was in the Children’s best interests. In determining

       whether termination of parental rights is in the best interests of a child, the trial

       court is required to look beyond the factors identified by DCS and consider the

       totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013).

       In so doing, the trial court must subordinate the interest of the parent to those of

       the child, and the court need not wait until a child is irreversibly harmed before

       terminating the parent-child relationship. McBride v. Monroe Cnty. Office of

       Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme

       Court has explained that “[p]ermanency is a central consideration in

       determining the best interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265

       (Ind. 2009). “Moreover, we have previously held that the recommendations of

       the case manager and court-appointed advocate to terminate parental rights, in

       addition to evidence that the conditions resulting in removal will not be

       remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests.” In re J.S., 906 N.E.2d at 236.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 16 of 17
[23]   Father’s case manager, the Children’s therapist, and the Guardian ad Litem all

       testified that the Children need permanency. Service providers also expressed

       concern that the Children would regress if the proceedings were permitted to

       continue. Each service provider believed that termination was in the best

       interests of the Children. We will not second guess the providers in this regard.


[24]   In sum, the court could properly rely on the results of Father’s drug screens,

       and the evidence was sufficient to support the court’s termination of Father’s

       parental rights to the Children.


[25]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019   Page 17 of 17
