MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                     Jul 09 2020, 9:20 am
court except for the purpose of establishing
                                                                                  CLERK
the defense of res judicata, collateral                                       Indiana Supreme Court
                                                                                 Court of Appeals
estoppel, or the law of the case.                                                  and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Deidre L. Monroe                                          Curtis T. Hill, Jr.
Gary, Indiana                                             Attorney General of Indiana
                                                          Abigail R. Recker
                                                          Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              July 9, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
B.P. and K.G. (Minor Children)                            20A-JT-251
and J.P. (Mother),                                        Appeal from the Lake Superior
Appellant-Respondent,                                     Court
                                                          The Honorable Thomas P.
        v.                                                Stefaniak, Jr., Judge
                                                          Trial Court Cause Nos.
Indiana Department of Child                               45D06-1909-JT-222
Services,                                                 45D06-1909-JT-223
Appellee-Petitioner.



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020                           Page 1 of 15
[1]   The Lake Superior Court terminated J.P.’s (“Mother”) parental rights to her

      two minor children. Mother appeals and argues that the trial court’s order

      involuntarily terminating her parental rights is not supported by clear and

      convincing evidence.


[2]   We affirm.


                                   Facts and Procedural History
[3]   Mother’s two children at issue in this case1 are B.P., born on January 19, 2014,

      and K.G., born on May 14, 2015. B.P.’s father is deceased. K.G.’s father,

      Ka.G. (“Father”) voluntarily terminated his parental rights to K.G.


[4]   The children were wards of the Department of Child Services (“DCS”) from

      July 2016 through April 2018 due to parents’ drug use. In June 2018,

      approximately two months after the prior Child In Need of Services (“CHINS”)

      case was dismissed, law enforcement officers found the parents unconscious on

      a park bench with four-year-old B.P. and three-year-old K.G. unsupervised

      nearby. Mother admitted to using synthetic marijuana after Father fell asleep at

      the park. Mother was arrested and charged with possession of a synthetic drug.

      DCS initially left the children in Father’s care, but shortly thereafter, they were

      placed in relative care.




      1
        Mother has five other biological children. Her rights were previously terminated to two of those children in
      separate cases due to a unsuitable home and drug use. Appellant’s App. p. 16; Ex. Vol. pp. 165–95. The
      remaining three children are in their father’s custody.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020                       Page 2 of 15
[5]   After Mother pleaded guilty to possession of synthetic marijuana, she agreed to

      conditional discharge and twenty hours of community service. Mother failed to

      appear in that case and was arrested on October 31, 2018. She was released

      from custody on November 5, 2018. Mother also has a prior conviction for

      Class A misdemeanor possession of a synthetic drug.


[6]   On June 19, 2018, DCS filed a petition alleging that the children were CHINS

      pursuant to Indiana Code section 31-34-1-1 citing parents’ drug use. At the

      initial CHINS hearing, Mother denied the allegations in DCS’s petition.

      However, at a pre-trial hearing in August 2018, Mother admitted that the

      children were CHINS. The trial court adjudicated the children as CHINS and

      made the children wards of DCS retroactive to June 19, 2018. Mother was

      ordered to submit to random drug screens, participate in an intensive outpatient

      program, participate in homebased case management, and participate in

      supervised visitation with the children.


[7]   Mother’s interaction with children during visitations was appropriate. But

      Mother cancelled many visits and did not visit with the children from May

      through November 2019. Mother failed to visit with the children because “she

      needed peace.” Tr. p. 51. Mother also failed to communicate with her family

      case manager during the same time period.


[8]   In June 2019, Mother was referred to Crown Counseling for homebased

      management. She completed an intake appointment with Crown Counseling in

      November 2019 and also resumed visitation with the children. Mother’s


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020   Page 3 of 15
       interaction with the children was appropriate during her last three visits.

       However, the family case manager could not recommend unsupervised

       visitation because of Mother’s lack of stability throughout this case. Tr. pp. 26–

       27.


[9]    Mother did not have stable employment or housing throughout the CHINS and

       termination proceedings. Tr. p. 26. Mother obtained a home in February 2019,

       but it was not suitable. It appeared to be abandoned. The home lacked utilities

       and a front door, windows were missing, and the floor appeared to be “caved

       in.” Tr. p. 35. Two months later, Mother moved in with her boss, her boss’s

       son, and her brother. DCS encouraged Mother to obtain independent housing.

       Tr. p. 46. DCS has requested copies of Mother’s pay stubs, but she did not

       provide them. Mother did not provide financial support for the children during

       the proceedings.


[10]   Mother did not consistently participate in services or fully address her substance

       abuse issues. Mother only had one positive drug screen for marijuana during

       these proceedings, in January 2019.2 Tr. pp. 37, 42. After the positive screen,

       Mother had a negative screen in February 2019. Tr. p. 107. Mother completed

       an outpatient program but did not complete the recommended follow up




       2
        The family case manager testified that synthetic marijuana is often undetected in drug screens because the
       chemical composition of the substance changes frequently. Tr. p. 43.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020                      Page 4 of 15
       service. Tr. p. 39. Mother did not submit to any further drug screening after

       February 2019.


[11]   On September 9, 2019, DCS filed a petition to terminate Mother’s parental

       rights to the children. A fact-finding hearing was held on December 18, 2019.

       Father relinquished his parental rights to the children at the hearing.


[12]   In its January 3, 2020, order terminating Mother’s parental rights, the trial court

       found:


               Mother lacked stability in her life, so services were implemented
               to assist with the stability issues. Mother indicated that she did
               not want the help and did not make herself available for the
               service provider. Mother indicated that she obtained housing in
               February of 2019. The case manager conducted a home visit on
               that home. The home did not have utilities and was not
               appropriate for any person to reside in. The home appeared to be
               an abandoned home with broken windows and in deplorable
               conditions.

               Mother submitted to a substance abuse assessment which
               recommended outpatient services for mother. Mother did
               participate in a program, but ceased all participation in May of
               2019. Mother initially was compliant with the case plan for
               reunification, but ultimately stopped all participation in May of
               2019. Mother has not submitted to a drug screen since January of
               2019, which that drug screen was positive for synthetic
               marijuana. Mother has refused to submit to any further drug
               screens.

               Mother stopped participating in all services in May of 2019 and
               stopped all communication with [DCS] regarding her children.
               Mother indicated at that time that she needed a break. Mother



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020   Page 5 of 15
        also stopped visiting her children. Mother has not attended a
        CHINS review hearing for her children since May of 2019.

                                                 ***

        Mother has a criminal history all related to her substance abuse
        issues.

        Mother has had her parental rights terminated to previous
        children in August of 2013.

        Mother has three other children to which custody was granted to
        their father. Mother does not have any of her children in her care
        or custody.

        [DCS] became involved in June of 2018 again due to the parents’
        substance abuse issues, instability or housing. At the time of this
        fact finding hearing, mother has not addressed her substance
        abuse issues, continues with her instability and lack of
        appropriate housing.

        [DCS] has been involved with this mother and offering services
        since 2009. Clearly, mother has not addressed her substance
        abuse issues. Mother was reunified with these children and ha[d]
        her cases dismissed pursuant to the prior CHINS matter in April
        of 2018. Within two months, the children had [] become wards
        again due to substance abuse issues.

        Grandmother testified to the parent’s long history of substance
        abuse issues. Grandmother testified that the synthetic marijuana
        makes the parents turn into a manic psychotic state and unsafe
        for the children. Grandmother indicated mother does not contact
        her regarding the children. Due to the lack of contact by mother,
        the children do not have any significant bond with mother.

        The children are four and five years of age and have been in
        relative care for approximately three years of their short lives.
        The children are bonded in their current placement and thriving.


Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020   Page 6 of 15
        It would be detrimental to the children’s well-being if the children
        were to be removed from that home.

        Neither parent is providing any emotional or financial support
        for the children. Neither parent has completed any case plan for
        reunification. Neither parent is in a position to properly parent
        these children. Father has voluntarily relinquished his parental
        rights. The children are in relative placement and are bonded and
        thriving.

        The children remain outside of the parents’ care. The original
        allegations of neglect have not been remedied by the parents.
        Neither of these parents have demonstrated an ability to
        independently parent the children and provide the necessary care,
        support and supervision. There is no basis for assuming the
        parents will complete the necessary services and find one or both
        of themselves in a position to receive the children into the home.
        The parents failed to utilize the available services and make the
        necessary efforts to remedy the conditions, which led to
        intervention by DCS and the Court.

        The children continue to reside in stable relative placement
        which has indicated both a willingness and ability to adopt both
        the children. It would be unfair to the children to delay such
        permanency on the very remote likelihood of the parents
        committing to and completing services.

                                                 ***

        Mother argues that this petition is not ripe and that mother didn’t
        know what her goals were. The services put into place were more
        than adequate and mother stopping visits in May 2019 speaks
        clearly that maybe mother has made some progress, but the
        children’s needs certainly did not stop until mother decided to
        visit with the children again in November 2019. Mother’s
        ongoing patterns of instability cannot be ignored.


Appellant’s App. pp. 3–5 (record citations omitted).

Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020   Page 7 of 15
[13]   The trial court found that DCS had proven both that there is a reasonable

       probability that the conditions resulting in the removal from Mother’s home

       will not be remedied and that there is a reasonable probability that the

       continuation of the parent-child relationship poses a threat to the well-being of

       the children. The court also concluded termination of Mother’s parental rights

       was in their best interests. Mother now appeals the trial court’s order

       terminating her parental rights to B.P. and K.G.


                                           Standard of Review
[14]   Indiana appellate courts have long had a highly deferential standard of review

       in cases involving the termination of parental rights. In re D.B., 942 N.E.2d 867,

       871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor assess witness

       credibility. Id. We consider only the evidence and reasonable inferences

       favorable to the trial court’s judgment. Id. In deference to the trial court’s

       unique position to assess the evidence, we will set aside a judgment terminating

       a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

       which leaves us with a definite and firm conviction that a mistake has been

       made. J.M. v. Marion Cty. Off. of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.

       App. 2004), trans. denied.


[15]   Mother does not challenge any of the trial court’s factual findings as being

       clearly erroneous. We therefore accept the trial court’s findings as true and

       determine only whether these unchallenged findings are sufficient to support

       the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020   Page 8 of 15
       denied; see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct.

       App. 2012) (holding that when the trial court's unchallenged findings support

       termination, there is no error), trans. denied.


                                       Discussion and Decision
[16]   Mother claims that the trial court’s order involuntarily terminating her parental

       rights is not supported by clear and convincing evidence. Indiana Code section

       31-35-2-4(b)(2) provides that a petition to terminate parental rights 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.


[17]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana

       Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is

       required to find that only one prong of subsection 4(b)(2)(B) has been



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020     Page 9 of 15
       established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220

       (Ind. Ct. App. 2010).


[18]   Clear and convincing evidence need not establish that the continued custody of

       the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.

       Off. of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient

       to show by clear and convincing evidence that the child’s emotional and

       physical development are put at risk by the parent’s custody. Id. If the court

       finds the allegations in a petition are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a).


[19]   The purpose of terminating parental rights is not to punish parents but instead

       to protect the child. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

       Although parental rights have a constitutional dimension, the law allows for

       their termination when the parties are unable or unwilling to meet their

       responsibilities as parents. Id. Indeed, parental interests must be subordinated to

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

       terminate parental rights. G.Y., 904 N.E.2d at 1259.


[20]   Mother argues that she was substance-free, employed, and resided in a stable

       home. Therefore, she challenges the trial court’s conclusion that there is a

       reasonable probability that continuation of the parent-child relationship poses a

       threat to the well-being of her children.


[21]   Mother attempts to analogize her circumstances to those in K.E. v. Indiana

       Department of Child Services, 39 N.E.3d 641, 649 (Ind. 2015). In that case, our

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020   Page 10 of 15
       supreme court reversed a termination of parental rights where the child was in

       relative placement and the incarcerated father had voluntarily “made extensive

       efforts to better himself by learning parenting skills, addressing his problems

       with substance abuse, and establishing a bond with both of his children.” K.E.,

       39 N.E.3d at 643–44. The court observed that “there is seemingly nothing else

       that Father could have been doing to demonstrate his dedication to obtaining

       reunification.” Id. at 649.


[22]   Moreover, in K.E., our supreme court observed:


               A trial court need not wait until a child is irreversibly influenced
               by a deficient lifestyle such that [his or] her physical, mental, and
               social growth is permanently impaired before terminating the
               parent-child relationship. However, termination should not result
               solely because there is a better home available for the children.


       Id. (quotations and citations omitted).


[23]   Here, the children were removed from Mother’s care in June 2018 after she was

       found unconscious on a park bench with four-year-old B.P. and three-year-old

       K.G. unsupervised nearby. Mother admitted to using synthetic marijuana. The

       children had only been returned to Mother’s care for approximately two

       months when they were removed in June 2018. Prior to the removal that led to

       these proceedings, the children were wards of DCS and placed in relative care

       from July 2016 through April 2018 due in part to Mother’s drug use.


[24]   After Mother admitted that the children were CHINS in August 2018, Mother

       participated in and completed certain services, including a substance abuse

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020   Page 11 of 15
       assessment and treatment. However, Mother did not continue to participate in

       the follow-up substance abuse treatment that DCS recommended.3 Mother’s

       history of substance abuse is well-documented, particularly her use of synthetic

       marijuana. Mother generally tested negative for illegal substances during these

       proceedings, but she also did not submit to drug screens after February 2019.

       The family case manager testified that it is difficult to detect synthetic

       marijuana in drug screens because the chemical nature of the substance changes

       frequently. Tr. p. 43.


[25]   Mother claimed stable employment but did not provide requested pay stubs to

       DCS and did not financially support the children. Mother stated that she lived

       in the same home for several months. However, Mother did not establish an

       independent home as DCS recommended. She lived with her boss, her boss’s

       son, and her former foster brother. DCS did not believe this home was suitable

       for the children.


[26]   Before May 2019, Mother participated in supervised visitation with the

       children, and her interaction with the children was appropriate. But Mother

       often cancelled the visitations. After May 2019 and until November 2019,

       Mother stopped communicating with DCS, failed to attend family review

       meetings, and stopped visitation with the children. In May 2019, Mother told a




       3
         It was within the trial court’s discretion to weigh the conflicting evidence concerning Mother’s participation
       in substance abuse treatment, and the trial court did not credit Mother’s testimony that she continued to
       participate in group therapy after she completed the intensive outpatient substance abuse program.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020                       Page 12 of 15
       family case manager that she needed a break and “peace.” Tr. p. 51. Visitation

       resumed when Mother began communicating with her family case manager in

       November 2019, two months after the petition to terminate her parental rights

       was filed.


[27]   DCS proved that Mother does not have the ability to parent her children and

       provide them with a stable home. Since July 2016, the children have been in

       Mother’s care for only two months. Mother failed to visit with the children for

       six months during these proceedings. For all of these reasons, we conclude that

       the trial court’s finding that there is a reasonable probability that continuation

       of the parent-child relationship poses a threat to the well-being of the children is

       supported by clear and convincing evidence.4


[28]   Mother also challenges the trial court's conclusion that termination of the

       parent-child relationship is in the children’s best interests. When we consider

       the best interests of a child, we look at the totality of the circumstances. In re

       A.W., 62 N.E.3d 1267, 1275 (Ind. Ct. App. 2016). The trial court “need not

       wait until a child is irreversibly harmed before terminating the parent-child

       relationship.” S.E. v. Ind. Dep't of Child Servs., 15 N.E.3d 37, 47 (Ind. Ct. App.

       2014), trans. denied. Although not dispositive, permanency and stability are key

       considerations in determining the child’s best interests. G.Y., 904 N.E.2d at




       4
         Because Indiana Code section 31-35-2-4(b)(2) is written in the disjunctive, we do not address Mother’s
       argument that clear and convincing evidence does not support the trial court’s finding that there is a
       reasonable probability that the conditions resulting in the removal from Mother’s home will not be remedied.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020                    Page 13 of 15
       1265. “A parent’s historical inability to provide a suitable environment along

       with the parent’s current inability to do the same supports a finding that

       termination of parental rights is in the best interests of the children.” In re A.P.,

       981 N.E.2d 75, 82 (Ind. Ct. App. 2012) (citation omitted). Likewise, the

       testimony of the service providers “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

       A.D.S., 987 N.E.2d 1150, 1158–59 (Ind. Ct. App. 2013), trans. denied.


[29]   Due to her substance abuse and instability, Mother has not been able to provide

       a stable and suitable home for her four- and five-year-old children since July

       2016. Mother failed to visit with her children for six months during these

       proceedings because she “needed peace.” Tr. p. 51. Mother has not established

       that she is able to meet the children’s immediate or long-term needs. And the

       family case manager testified that termination of Mother’s parental rights was

       in the children’s best interests. Tr. pp. 29–30. The children’s paternal

       grandmother has been caring for the children for nearly three years and desires

       to adopt them. The children are happy and doing well in their relative

       placement. For all of these reasons, we conclude that clear and convincing

       evidence supports the trial court’s finding that termination of Mother’s parental

       rights is in the children’s best interests.


                                                  Conclusion
[30]   The trial court’s order terminating Mother’s parental rights to B.P. and K.G. is

       supported by clear and convincing evidence.
       Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020   Page 14 of 15
[31]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-251 | July 9, 2020   Page 15 of 15
