MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 31 2020, 10:29 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Alexander W. Robbins                                      Curtis T. Hill, Jr.
Bedford, Indiana                                          Attorney General of Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          July 31, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of: K.L. (Minor                              20A-JT-519
Child),                                                   Appeal from the Hendricks
and                                                       Superior Court
                                                          The Honorable Karen M. Love,
A.L. (Mother),                                            Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          32D03-1810-JT-21
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020                       Page 1 of 15
      Tavitas, Judge.


                                                    Case Summary
[1]   A.L. (“Mother”) appeals the termination of her parental rights to K.L.

      (“Child”). We affirm.


                                                             Issue
[2]   The sole issue on appeal is whether sufficient evidence supports the termination

      of Mother’s parental rights to the Child.


                                                             Facts
[3]   The Child was born to Mother and R.M. (“Father”) 1 on April 22, 2017. The

      Child was born prematurely with opiates and cocaine in his system. The Child

      was admitted to the neonatal intensive care unit due to respiratory distress and

      drug withdrawal. Mother tested positive for cocaine and admitted to using

      heroin and cocaine while pregnant. Mother reported that she had been going to

      a methadone clinic but that she continued using cocaine while enrolled at the

      clinic. The Hendricks County Department of Child Services (“DCS”) removed

      the Child from Mother’s care. Upon the Child’s discharge from the hospital,

      the Child was placed in foster care, where he has remained.




      1
          The trial court also terminated Father’s parental rights, but Father is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020                              Page 2 of 15
[4]   On May 3, 2017, DCS filed a petition alleging that the Child was a child in

      need of services (“CHINS”). On August 1, 2017, the trial court found that the

      Child was a CHINS. Specifically, the trial court found:


              30. The coercive intervention is necessary to be sure Mother
              receives the mental health treatment, substance abuse treatment
              and parenting support she needs to provide appropriate care for
              this young infant who also has potential medical issues
              concerning his growth, eyesight, and possible hepatitis.


              31. Without the coercive intervention of the Court it is very
              unlikely Mother will receive or accept the substance abuse and
              mental health treatment she needs to be a sober caregiver for [the
              Child].


              32. [The Child’s] physical condition is seriously endangered as a
              result of his Mother’s inability to become and remain sober and
              provide him the safe daily care he needs.


              33. [The Child’s] physical condition is seriously endangered
              because his father cannot provide him appropriate housing.
              Father has shown little interest in providing any of [the Child’s]
              needs.


      Ex. Vol. VII p. 46.


[5]   The trial court entered a dispositional order in September 2017. The trial court

      ordered Mother, in part, to: (1) not use or consume any illegal controlled

      substances and only take prescription medications for which she had a valid

      prescription; (2) not to consume alcohol; (3) obey the law; (4) complete a

      parenting assessment and follow all recommendations; (5) complete home-

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020   Page 3 of 15
      based counseling; (6) complete a substance abuse assessment and follow all

      recommendations; (7) submit to random drug screens; and (8) attend all

      scheduled visitations with the Child. The trial court also later ordered Mother

      to complete a mental health evaluation and complete any recommended

      treatment.


[6]   Thirty-two-year-old Mother has been addicted to heroin since she was nineteen

      years old and abused prescription pain medications before using heroin.

      Between August 2017 and March 2019, Mother consistently tested positive for

      methadone, including on some days she did not attend the methadone clinic.

      Although Mother made some progress toward sobriety, she relapsed in

      February 2018. Between February 2018 and March 2019, Mother consistently

      tested positive for illegal substances, including heroin, fentanyl, morphine,

      phenobarbital, Xanax, chlordiazepoxide, methamphetamine, and oxycodone.

      Although DCS requested that Mother submit to 134 drug screens, Mother

      failed to appear for sixty of the requested drug screens.


[7]   At a hearing on February 28, 2018, Mother was observed bouncing the Child

      up and down dangerously close to a banister on the second floor of the

      Courthouse. Mother appeared impaired during the hearing and tested positive

      for heroin, methadone, and fentanyl. Mother overdosed two times in May

      2018. Mother claims to have participated in inpatient drug treatment programs

      at Fairbanks twice in May 2018 and once in September 2018; mental health

      treatment at Valle Vista in August 2018, October 2018, and February 2019; and

      been hospitalized several times, including for a facial fracture in January 2019.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020   Page 4 of 15
      Mother, however, did not provide DCS with timely releases so that DCS could

      confirm Mother’s compliance with the programs. DCS has offered additional

      treatment options to Mother, but Mother has not participated in those other

      options.


[8]   Mother has been diagnosed with depression, substance/medication induced

      anxiety disorder, and opioid use disorder. Mother, however, failed to attend

      individual therapy, failed to participate in home-based case work consistently,

      and failed to attend child and family team meetings. Mother also failed to

      participate in supervised visitations consistently and frequently attended

      supervised visitations while under the influence of substances. Mother also

      visited with the Child without informing DCS that she had a contagious

      bacterial infection. Mother never progressed beyond supervised visitation with

      the Child and last visited the Child in February 2019.


[9]   Mother has several prior convictions, including convictions for: operating while

      intoxicated with endangerment, a Class A misdemeanor (2008); theft, a Class D

      felony (2009); dealing in a schedule IV controlled substance, a Class C felony

      (2010); and criminal recklessness while armed with a deadly weapon, a Class D

      felony (2012). Mother has repeatedly violated the terms of her probation.

      During the CHINS and termination of parental rights proceedings, Mother was

      charged with (1) possession of a narcotic drug (heroin), a Level 6 felony, on




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020   Page 5 of 15
       May 26, 2018; 2 (2) operating a vehicle while intoxicated, a Class C

       misdemeanor, and operating a vehicle with an alcohol concentration equivalent

       to .15 or more, a Class A misdemeanor, on August 7, 2018; (3) violating her

       driving conditions, a Class C misdemeanor, on January 2, 2019; (3) possession

       of a narcotic drug (heroin), a Level 6 felony; operating a vehicle while

       intoxicated, a Class A misdemeanor; and violating her driving conditions, a

       Class C misdemeanor, on April 9, 2019. Mother was also arrested on April 18,

       2019, when she appeared in the Hendricks Circuit Court for an initial hearing

       while she was intoxicated.


[10]   The Child has experienced developmental delays. In June 2018, the Child was

       examined by a neurodevelopmental pediatrician, who diagnosed the Child with

       a global development delay 3, hypotonia 4, dysmorphic features 5, and feeding

       difficulties. Testing revealed that the Child is missing part of a chromosome

       and possibly has Smith Magenis Syndrome 6. Each week, the Child has speech




       2
         Mother was found passed out in a bathroom stall in a Walmart. When officers asked her to come out of the
       stall, Mother attempted to flush items down the toilet. Mother was incoherent, disoriented, and had blood
       trickling down her arm from her elbow. Mother dropped a coin purse that contained a substance consistent
       with heroin.
       3
        Dr. Celanie Christensen testified that a global development delay is “delays in two or more of the four
       developmental domains which are gross motor, fine motor, speech and social.” Tr. Vol. II p. 135.
       4
           Dr. Christensen testified that hypotonia is “low muscle tone. . . .” Tr. Vol. II p. 136.
       5
         Dr. Christensen testified that dysmorphic features are “unusual physical findings,” such as a “broad
       forehead.” Tr. Vol. II p. 136.
       6
        Smith Magenis Syndrome is a genetic syndrome that “causes mild to moderate intellectual disability,”
       “short stature,” “significant sleeping and behavior problems,” and “characteristic facial findings.” Tr. Vol. II
       p. 137.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020                       Page 6 of 15
       therapy, occupational therapy, and physical therapy. The Child has a special

       diet and sees a nutritionist. The Child’s doctor has recommended that the

       Child not be exposed to second-hand tobacco smoke, including smoke on

       clothes. Mother and maternal grandmother, however, continued to smoke

       tobacco.


[11]   In October 2018, DCS filed a petition to terminate Mother’s and Father’s

       parental rights. 7 Fact-finding hearings were held over five days between

       November 14, 2018, and May 16, 2019. Although Mother was scheduled to

       appear for a continuation of the fact-finding hearing on April 10, 2019, before

       the hearing started, Mother turned herself into jail due to an arrest warrant.

       Mother was not eligible to bond herself out because she was extremely

       intoxicated. Mother appeared late to the April 12, 2019, hearing, and Mother

       failed to appear for the final day of the fact-finding hearing on May 16, 2019.

       At the time of the April 2019 fact-finding hearings, DCS was recommending

       that Mother participate in a lengthy in-patient drug treatment program.


[12]   On January 31, 2020, the trial court entered extensive findings of fact and

       conclusions thereon terminating Mother’s and Father’s parental relationship




       7
         The Child’s maternal grandmother, C.L., filed a petition for guardianship in May 2018. Foster parents filed
       a motion to intervene in the guardianship proceedings, which the trial court granted. The trial court then
       joined the guardianship case with the termination of parental rights action. In a footnote, Mother contends
       that joining the guardianship and termination of parental rights cause was “an inequitable ganging-up on the
       parents” because the foster parents were allowed to interrogate witnesses, file objections, and make
       arguments. Appellant’s Br. p. 5 n.2. Mother, however, does not directly challenge the joining of the
       guardianship proceedings. As such, we do not address the issue.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020                    Page 7 of 15
       with the Child. In March 2020, Mother filed a motion seeking leave to file a

       belated notice of appeal, which the trial court granted. Mother now appeals.


                                                    Analysis
[13]   Mother appeals from the termination of her parental rights. The Fourteenth

       Amendment to the United States Constitution protects the traditional rights of

       parents to establish a home and raise their children. In re K.T.K. v. Indiana Dept.

       of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A]

       parent’s interest in the upbringing of [his or her] child is ‘perhaps the oldest of

       the fundamental liberty interests recognized by th[e] [c]ourt[s].’” Id. (quoting

       Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, of

       course, that parental interests are not absolute and must be subordinated to the

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

       terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

       the parents are unable or unwilling to meet their parental responsibilities by

       failing to provide for the child’s immediate and long-term needs.’” K.T.K., 989

       N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004),

       trans. denied).


[14]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re. I.A., 934 N.E.2d 1127, 1132 (Ind.

       Ct. App. 2010). We consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. We must also give “due regard” to the




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020   Page 8 of 15
       trial court’s unique opportunity to judge the credibility of the witnesses. Id.

       (quoting Ind. Trial Rule 52(A)).


[15]   Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

       findings of fact that support the entry of the conclusions required by subsections

       (a) and (b).” Here, the trial court entered findings of fact and conclusions

       thereon in granting DCS’s petition to terminate Mother’s parental rights. When

       reviewing findings of fact and conclusions thereon entered in a case involving a

       termination of parental rights, we apply a two-tiered standard of review. First,

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

       determine whether the findings support the judgment. Id. We will set aside the

       trial court’s judgment only if it is clearly erroneous. Id. A judgment is clearly

       erroneous if the findings do not support the trial court’s conclusions or the

       conclusions do not support the judgment. Id.


[16]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:


               (A) 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.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020   Page 9 of 15
                         (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;


                (B) that termination is in the best interests of the child; and


                (C) that there is a satisfactory plan for the care and treatment of
                the child.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


[17]   Mother challenges the trial court’s conclusion that 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.” 8 I.C. § 31-

       35-2-4(b)(2). “In determining whether ‘the conditions that resulted in the

       [Child’s] removal . . . will not be remedied,’ we ‘engage in a two-step analysis.’”




       8
         Mother also argues that there was no reasonable probability that the continuation of the parent-child
       relationship posed a threat to the well-being of the Child. Indiana Code Section 31-35-2-4(b)(2)(B) is written
       in the disjunctive. Consequently, the DCS was required to demonstrate by clear and convincing evidence a
       reasonable probability that either: (1) the conditions that resulted in the Child’s removal or the reasons for
       placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-child
       relationship poses a threat to the well-being of the Child. See, e.g., Bester v. Lake County Office of Family &
       Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005). The trial court here found a reasonable probability that the
       conditions that resulted in the Child’s removal or reasons for placement outside the home of the parents will
       not be remedied, and there is sufficient evidence to support that conclusion. Accordingly, we do not address
       whether the continuation of the parent-child relationship poses a threat to the well-being of the Child.



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020                      Page 10 of 15
       In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at

       1231). “First, we identify the conditions that led to removal; and second, we

       ‘determine whether there is a reasonable probability that those conditions will

       not be remedied.’” Id. In analyzing this second step, the trial court judges the

       parent’s fitness “as of the time of the termination proceeding, taking into

       consideration evidence of changed conditions.” Id. (quoting Bester, 839 N.E.2d

       at 152). “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.” Id. “Requiring trial courts to give due regard to

       changed conditions does not preclude them from finding that parents’ past

       behavior is the best predictor of their future behavior.” Id.


[18]   The trial court found:


               443. There is a reasonable probability the conditions that
               resulted in removal of the child from the home or the reasons for
               continued placement outside the home will not be remedied.
               Neither parent has demonstrated the ability or willingness to
               make lasting changes from past behaviors. There is no
               reasonable probability that Mother will be able to maintain
               sobriety and mental health stability in order to care and provide
               adequately for [the Child]. . . .


               444. [The Child] was removed from Mother’s care on May 2,
               2017 after child tested positive for opiates and mother admitted
               to heroin use during her pregnancy.


               445. Mother has a history of drug addiction that goes as far back
               as her teenage years. She has continuously abused drugs and
               more recently abused alcohol throughout the CHINS
       Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020   Page 11 of 15
        proceedings, resulting in overdose and various drug-related and
        alcohol-related criminal convictions and charges.


        446. Mother has been offered numerous services and support
        throughout the CHINS proceedings; however, she has failed to
        take advantage of the services offered her.


        447. Rather than work with the Family Case Managers to
        participate in services that could help her overcome her
        addictions, she chose to continue in her own plan of treatment,
        which consisted of Fairbanks short term in-patient treatment as
        well as primarily methadone treatment.


        448. Mother’s participation in the methadone programs could
        not be monitored by DCS because Mother refused to sign
        releases to allow DCS to gather the information and speak with
        her counselors.


        449. DCS offered Mother the opportunity for individual
        counseling; but Mother would not participate in said counseling
        and instead would admit herself into the hospital for medication
        treatment whenever anxiety and depression overcame her.


        450. Mother’s failed attempts at her own mental health
        treatment and substance abuse treatment have led her to continue
        to abuse drugs and alcohol and get herself into criminal trouble
        which includes showing up intoxicated to jail and to court
        proceedings.


        451. There has been no improvement and no progress in
        Mother’s condition from the time the child was removed to the
        final date of the Fact-Finding Hearing and based on her history,
        no progress is expected in the near future.



Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020   Page 12 of 15
               452. Mother’s freedom from incarceration is uncertain, having 3
               pending criminal cases with various charges.


               453. Mother has no income and no ability to support herself
               outside of the assistance Grandmother provides. Grandmother
               provides Mother’s housing and transportation.


                                                     *****


               31. DCS has proved by clear and convincing evidence that there
               is a reasonable probability the conditions that resulted in removal
               of the child from the home or the reasons for continued
               placement outside the home will not be remedied. Neither
               parent has demonstrated the ability or willingness to make lasting
               changes from past behaviors. There is no reasonable probability
               that either parent will be able to maintain sobriety and stability in
               order to care and provide adequately for [the Child].


       Appellant’s App. Vol. II pp. 97-98, 105.


[19]   Mother does not challenge any of the trial court’s specific findings of fact.

       Mother, however, argues that the trial court’s findings ignore her ongoing

       efforts, including her methadone treatment, inpatient substance abuse

       treatment, and inpatient mental health treatment. Mother also contends that

       the trial court relied too heavily on her criminal history, which “consisted of

       cases where [Mother] was convicted prior to [the Child] being born or where

       charges were still pending.” Appellant’s Br. p. 12. Given Mother’s ongoing

       efforts to “rid her life of drug use” and her strong bond with the Child, Mother

       argues it is “evident that [Mother] is likely to remedy the conditions that led to

       the removal and continued DCS involvement. . . .” Id. at 12-13.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020   Page 13 of 15
[20]   The Child was removed from Mother’s care in April 2017 because the Child

       was born prematurely with opiates and cocaine in his system. Mother tested

       positive for cocaine and admitted to using heroin and cocaine while pregnant.

       Although Mother has been offered and provided significant services, Mother

       made little, if any, progress in remedying her substance abuse issues.


[21]   Mother failed to attend individual therapy, failed to participate in home-based

       case work consistently, failed to attend child and family team meetings, and

       failed to participate in supervised visitations consistently. Most importantly,

       Mother has made minimal progress toward achieving sobriety. Even while the

       fact-finding hearings were being held on DCS’s petition to terminate Mother’s

       parental rights, Mother continued testing positive for illegal substances,

       including methamphetamine, oxycodone, fentanyl, Xanax, and methadone.

       Although Mother was attending a methadone clinic, she occasionally tested

       positive for methadone on days that she did not go to the clinic. Mother also

       repeatedly appeared at court hearings, the jail, and visitations with the Child

       while impaired by drugs or alcohol.


[22]   As a result of Mother’s addiction issues, she continues to be charged with

       related crimes, several of which were still pending at the time of the fact-finding

       hearings. Mother has been addicted to illegal substances for more than a

       decade and is in no position to care for the Child. The guardian ad litem

       testified that Mother and Father could not “take care of themselves. And, if

       they can’t take care of themselves as adults, how can they take care of [the

       Child].” Tr. Vol. IV pp. 149-50. Mother admitted during her testimony that

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020   Page 14 of 15
       she needed “time to make [her]self better and capable to provide [the Child]

       with his best care.” Id. at 242. Given Mother’s ongoing addiction issues, the

       trial court’s conclusion that Mother was unlikely to remedy the reasons for the

       Child’s removal and continued placement outside Mother’s home is not clearly

       erroneous.


                                                  Conclusion
[23]   The trial court’s order terminating Mother’s parental rights to the Child is not

       clearly erroneous. We affirm.


[24]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-519 | July 31, 2020   Page 15 of 15
