MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Apr 09 2018, 6:11 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan B. Quirk                                            Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana

                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 9, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of U.R. (Minor Child);                                    18A02-1709-JT-2203
T.R. (Mother),                                            Appeal from the Delaware Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Kimberly S.
        v.                                                Dowling, Judge
                                                          The Honorable Amanda L.
Indiana Department of Child                               Yonally, Magistrate
Services,                                                 Trial Court Cause No.
                                                          18C02-1606-JT-23
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018              Page 1 of 18
                                        Statement of the Case
[1]   T.R. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor child U.R. (“Child”). Mother raises one issue for our review, which

      we restate as the following two issues:


              1.     Whether the trial court violated Mother’s constitutional
              rights when it did not immediately cease an initial hearing when
              Mother stated that she wanted to hire an attorney.


              2.     Whether the trial court’s conclusion that the reasons that
              resulted in Child’s removal from Mother’s care will not be
              remedied is clearly erroneous.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In March of 2015, Mother admitted Child was a CHINS based on Mother’s use

      of “illicit substances, including methamphetamines, opiates, and marijuana.”

      Ex. Vol. I at 17. As a result, the trial court entered a dispositional decree in

      which it ordered Mother to refrain from the use of any illegal substances, to

      participate in home-based counseling, to complete a substance-abuse

      assessment, and to submit to random drug screens. On June 23, 2016, the

      Indiana Department of Child Services (“DCS”) filed a petition to terminate

      Mother’s parental rights over Child based on her failure to comply with the

      dispositional order. Along with its petition to terminate her rights, DCS

      informed Mother that she was “entitled to representation by counsel, provided



      Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 2 of 18
      by the state if necessary, throughout any proceedings to terminate the

      parent/child relationship . . . .” Appellant’s App. Vol. 2 at 17.


[4]   Nearly two months later, the court held an initial hearing on the termination

      petition, and Mother appeared at that hearing pro se. At the beginning of the

      hearing, she engaged the court in a colloquy in which she stated that she had

      some college education, no mental or emotional disabilities, and that she was

      not under the influence of any substances. She then asked the court if she “was

      allowed to ask to have my visits reinstated,” and the court told her that they

      would “get to that.” Tr. Vol. 2 at 6.


[5]   The court then reviewed DCS’s petition and informed Mother that she had the

      right to an attorney during the termination proceedings. Mother then informed

      the court that she wanted “to try to get an attorney,” and the court

      acknowledged her statement. Id. at 9. Mother declined the opportunity to have

      the court appoint her a public defender. The court then informed Mother that it

      would give her “until the next hearing to . . . engage private counsel,” and

      Mother said, “Okay.” Id. at 11. The court further advised Mother of her right

      to remain silent.


[6]   The court then scheduled the next hearing date. However, before adjourning,

      the court asked the Family Case Manager (“FCM”) for an update on Child’s

      placement and visitation. After that update, the court returned to Mother’s

      initial comment that she wanted to “ask to have [her] visits reinstated,” id. at 6,




      Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 3 of 18
and the court asked Mother what she wanted to say, id. at 15. Rather than

exercise her right to remain silent, Mother stated as follows:


        [MOTHER]: Well . . . , you know last time I was here, you
        know I was obviously a hot mess. . . . I chose to go to the Hope
        House. When I got there I was coming off of heroin and meth
        and I did not get along and I felt like that was a bad thing. The
        only reason I missed that appointment . . . is because I was at the
        Hope House . . . [and] I had to go complete community
        service . . . . But I’ve been—I’ve did everything. I threw myself
        into NA. I’ve been in NA every day, I’ve had a sponsor. You
        know everybody wanted me to go and get on . . . Suboxone to
        come off the heroin. I did not want to do that because I felt like
        that was just another chemical . . . . [But] yet I did do that. . . . I
        believe it’s . . . helped me a lot. . . . It has kept me going and I
        just, really want to see my son. I’m trying so hard, so hard. I’m
        doing everything, you know, . . . except for the . . . three of
        them . . . two of those I was at the Hope House to miss those
        screens and them appointments with her. That’s the only reason
        I missed it and the only reason I missed the one on one is
        because I had prior things to do for the community service.


                                                ***


        But since then . . . I have worked on me. I’ve worked on our
        relationship with me and my baby’s father, we’re getting along.
        We’re coming to agreements. . . . I believe I’m in a way better
        place than I was the last time you seen me. And I . . . believe I
        am more stable without the Seroquel because it . . . makes me
        fluctuate, it makes me go from one to another as well. So, I
        believe that I don’t need that medication. I have not had . . . it
        for two months, not one time since I’ve stopped using the other
        chemicals have I had a moment where I’ve snapped out on
        DCS . . . . I haven’t showed any signs that Seroquel—me not


Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 4 of 18
              taking the Seroquel is a[n] issue. I don’t feel any type of suicidal
              thoughts . . . I believe I have a clear head today.


              THE COURT: What’s the situation with the continuing positive
              screens for marijuana?


              [MOTHER]: That was just for me to help me with the
              withdraw[al]s from the heroin and stuff, because I don’t want to
              take the Suboxone or methadone.


              THE COURT: Okay that sounds to me like it’s . . . an excuse to
              continue to use drugs.


              [MOTHER]: No. No, it was just to help me not to go back to
              use the heroin . . . .


              THE COURT: . . . I understand . . . how difficult it is to get
              clean from heroin. I do understand that. And I commend you
              on your progress because things were not good last time I saw
              you. . . . [B]ut I remain seriously concerned about your decision
              to use one illicit drug to replace another illicit drug.


      Id. at 15-18. The court then informed Mother that if she could have at least “six

      consecutive clean screens . . . and full engagement in services and

      compliance . . . with the recommendations” between the initial hearing and the

      next hearing, the court would reinstate supervised visitations. Id. at 20.


[7]   On November 29, 2016, Mother was admitted to the emergency room of the

      Indiana University Health Ball Memorial Hospital in Muncie. At that visit,

      Mother admitted to “[c]urrent” use of heroin, marijuana, methamphetamine,



      Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 5 of 18
      and “[p]rescription medications.” Ex. Vol. 2 at 231-32.1 On December 12,

      Mother was again admitted to the emergency room at that hospital, and she

      again admitted to current use of those substances. Id. at 240. Lab results

      conducted during that visit likewise demonstrated that Mother had used

      amphetamine/methamphetamine and opiates, and the treating physician

      diagnosed her with “polysubstance abuse.” Id. at 233. In January of 2017,

      Mother refused to submit to any more drug screens.


[8]   In March and May, the trial court held its final, fact-finding hearings on DCS’s

      termination petition. After that hearing, the court entered the following

      findings of fact:


                22. At the fact-finding hearing on February 23, 2015[,] on the
                petition alleging [C]hild to be a child in need of services,
                [M]other admitted to using illicit substances, including
                methamphetamines, opiates, and marijuana.


                                                         ***


                35. Dr. Kenneth McCoy is a licensed psychologist and Clinical
                Director at Anchor Behavioral Counseling.


                36. Dr. McCoy conducted a complete psychological evaluation
                for [Mother] in November of 2015.




      1
          Our pagination of Exhibit Volume 2 is based on the .pdf pagination.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 6 of 18
        37. The purpose of this evaluation was to determine the fitness
        of [M]other having [C]hild returned to her custody.


        38. Diagnoses made from this evaluation included opiate
        dependence, amphetamine dependence, non-specified personality
        disorder, and a rule out of bi-polar disorder


                                                ***


        41. Mother has an extensive history of substance abuse; by the
        age of fifteen, she was using illicit intravenous drugs including
        methamphetamine.


        42. Mother was actively using illicit substances at the time of the
        psychological evaluation.


        43. Dr. McCoy recommended that [M]other consult with a
        psychiatrist and submit to an in-patient drug treatment program.


                                                ***


        45. On or about May 4, 2016[,] the father left [C]hild with
        [M]other, who was under the influence of an illicit substance.


                                                ***


        47. FCM [Dominique] Geers arrived at the home and knocked,
        but no one answered the door.


                                                ***




Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 7 of 18
        50. Officer Kyle Temple of the Muncie Police Department was
        dispatched to the parents’ residence.


                                                ***


        52. [C]hild and [M]other were located in the home.


        53. FCM Geers removed [C]hild from [M]other.


        54. Officer Temple left the residence[] but was called
        back . . . approximately forty-five minutes later based on a call
        for a battery, domestic . . . disturbance.


                                                ***


        56. Officer Temple met with father, who reported that [M]other
        had struck him, that [M]other was in the house[,] and that she
        was intending to burn the house down.


        57. Officer Temple smelled kerosene as he approached the
        house.


        58. [M]other was in the house pacing back and forth, and her
        pants were wet from the knees down.


        59. [M]other told the officer to tell her son that she loved him.


        60. Officer Temple was unable to access the home because the
        doors were locked.


        61. [M]other had a lighter and was attempting to light it.



Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 8 of 18
        62. Officer Temple called for the fire department to stage outside
        of the house.


        63. Officer Temple repeatedly attempted to convince [M]other to
        come outside of the home.


        64. Twice [M]other dumped a can of gasoline on her head.


        65. [M]other got gasoline in her mouth and eyes and exited the
        residence.


        66. The officer transported [M]other to the hospital.


                                                ***


        69. Kourtney Gallegos (“Therapist”) is a therapist who
        specializes in addictions treatment.


        70. The therapist has worked with [M]other since the summer of
        2015.


        71. Mother’s attendance at therapy has been consistent.


                                                ***


        74. Mother sometimes submitted to drug screens requested by
        the therapist and sometimes declined to submit to drug screens
        requested by the therapist.


                                                ***




Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 9 of 18
        76. During the pendency of the CHINS case, [M]other . . . had
        periods of sobriety, the longest of which lasted approximately
        five (5) months.


        77. Mother was not in a period of sobriety as of the second day
        of the fact-finding hearing [in May of 2017].


        78. The span of time between relapses with illicit substances
        increased for [M]other during her therapy.


        79. Mother’s use of marijuana is routine for her, and [M]other
        has not identified abstinence from marijuana as a treatment goal.


                                                ***


        83. As of the second day of the fact-finding [hearing], [M]other
        continued to need weekly, regular treatment for her substance
        addictions.


                                                ***


        85. Mother has been under a court order to submit to drug
        screens since November of 2015.


                                                ***


        90. Mother’s compliance with drug screens was very good
        between June of 2015 and January of 2017.


        91. Mother had short periods of time when she was negative for
        all substances.



Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 10 of 18
        92. Mother was consistently positive for marijuana.


        93. There were multiple segments of time during the CHINS
        case when [M]other was consistently positive for
        methamphetamine.


        94. Mother was positive for methamphetamine and opiates
        on . . . December 12, 2016.


                                                ***


        97. Mother last submitted to a drug screen on January 4, 2017.


        98. After January 4, 2017, FCM Geers had conversations with
        [M]other regarding drug screens and services.


        99. In January or February of 2017, FCM Geers sent a certified
        letter to [M]other to remind [M]other of services available to her
        and of the expectation that [M]other continue to submit to drug
        screens.


        100. FCM Geers sent text messages to [M]other approximately
        every other week to remind [M]other of services available to her
        and of the expectation that [M]other continue to submit to drug
        screens.


        101. FCM Geers attempted to have conversations with [M]other
        about services and drug screens after each court hearing.


        102. Mother directly refused at least three (3) drug screen
        requests made by FCM Geers . . . in 2017.




Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 11 of 18
              103. Mother understood that she was under a court order to
              submit to drug screens and that there was a drug screen schedule
              to which she had agreed to adhere.


              104. Mother refused to comply with the court order for drug
              screens and with the schedule for drug screens since January 4,
              2017.


      Appellant’s App. Vol. 2 at 95-100. The court then concluded, among other

      things, that there was a reasonable probability that the conditions that resulted

      in Child’s removal from Mother’s care will not be remedied, and the court

      ordered the termination of Mother’s parental rights over Child. This appeal

      ensued.


                                      Discussion and Decision
                                                    Overview

[9]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

      denied. However, a trial court must subordinate the interests of the parents to

      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

      832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

      proper where a child’s emotional and physical development is threatened. Id.

      Although the right to raise one’s own child should not be terminated solely


      Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 12 of 18
       because there is a better home available for the child, parental rights may be

       terminated when a parent is unable or unwilling to meet his or her parental

       responsibilities. Id. at 836.


[10]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove:


                (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.

                                                       ***

                (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). DCS’s “burden of proof in termination of parental

       rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child

       Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

       14-2).


[11]   When reviewing a termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of
       Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 13 of 18
       Fam. & Child. (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 that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

       court’s unique position to assess the evidence, we will set aside the court’s

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied.


[12]   Here, in terminating Mother’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cty. Off. of Fam. & Child., 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). If

       the evidence and inferences support the trial court’s decision, we must affirm.

       In re L.S., 717 N.E.2d at 208.


[13]   Here, Mother raises two issues for our review. First, Mother asserts that the

       trial court denied her right to counsel at the August 2016 initial hearing on

       DCS’s petition to terminate her parental rights. Second, Mother argues that

       DCS failed to meet its burden to show that the conditions that resulted in




       Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 14 of 18
       Child’s removal from her care will not be remedied.2 We address each

       argument in turn.


                                   Issue One: Mother’s Right to Counsel

[14]   We first address Mother’s argument the trial court denied her her constitutional

       rights when it continued to hold the initial hearing “without counsel for Mother

       where Mother was asked questions by the Trial Court.” Appellant’s Br. at 10.

       According to Mother, the trial court violated her rights “under the First

       Amendment,” “under the Fourteenth Amendment Due Process and Equal

       Protection Clauses,” and under “the Ninth Amendment to the US

       Constitution.” Id.


[15]   Mother’s argument is not supported by cogent reasoning. She cites no

       authority for a right to counsel under the First, Ninth, or Fourteenth

       Amendments. She does not discuss the Sixth Amendment. And while she cites

       Indiana Code Section 31-32-2-5, which does provide for the right to counsel in

       termination proceedings, she does not apply it on the facts of this case.


[16]   More critically, Mother does not acknowledge that she was informed of her

       right to counsel when DCS filed its petition nearly two months prior to the

       initial hearing. Mother also does not acknowledge that she was advised of her

       right to remain silent at the initial hearing, a right she chose not to exercise after




       2
         As we affirm the trial court’s judgment on this issue, we need not consider Mother’s alterative arguments
       under Indiana Code Section 31-35-2-4(b)(2)(B).

       Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018            Page 15 of 18
       having been so advised. And Mother does not acknowledge that the trial

       court’s colloquy with her was in direct response to Mother’s affirmative

       representation to the court that she wanted to “ask to have my visits

       reinstated.” Tr. Vol. 2 at 6. In other words, Mother was properly advised of

       her rights; she does not argue that she was improperly advised of her rights;

       and, after having been properly advised, she chose not to immediately exercise

       those rights because she wanted to argue for the reinstatement of her visitation.

       We reject Mother’s argument on appeal that the trial court violated her right to

       counsel at the initial hearing.


                        Issue Two: Whether the Conditions that Resulted in
                                Child’s Removal will be Remedied

[17]   We thus turn to Mother’s argument that the trial court clearly erred when it

       concluded that the conditions that resulted in the removal of Child from

       Mother’s care will not be remedied. In determining whether the evidence

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

       reasons for Child’s removal, we engage in a two-step analysis. E.M. v. Ind. Dep’t

       of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). “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.

       (quotations and citations omitted). In the second step, the trial court must

       judge a parent’s fitness to care for her children at the time of the termination

       hearing, taking into consideration evidence of changed conditions. Id.

       However, the court must also “evaluate the parent’s habitual patterns of


       Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 16 of 18
       conduct to determine the probability of future neglect or deprivation of the

       child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct.

       App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

       have properly considered 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. Id. Moreover, DCS is not required to rule

       out all possibilities of change; rather, it need establish only that there is a

       reasonable probability the parent’s behavior will not change. Id.


[18]   The trial court did not clearly err when it concluded that the conditions that

       resulted in the removal of Child from Mother will not be remedied. One of the

       conditions that led to Child’s removal from Mother was Mother’s drug use. As

       DCS succinctly states, “Mother’s drug use was not remedied at the time of

       trial.” Appellee’s Br. at 28. Indeed, just between the initial hearing in August

       of 2016 and the fact-finding hearing in May of 2017, Mother twice appeared at

       an emergency room and admitted to using numerous illicit substances. At the

       second emergency room visit, her statement was confirmed by lab tests. Just a

       few weeks after that visit, Mother began refusing to submit to any drug screens.

       And the trial court found that “Mother was not in a period of sobriety as of the

       second day of the fact-finding hearing [in May of 2017].” Appellant’s App.

       Vol. 2 at 98. We also note that DCS presented evidence that Mother continued

       to lack stable housing and employment as of the final termination hearing.


[19]   Mother’s argument on appeal amounts to a request for this court to reweigh the

       evidence that was before the trial court, which we cannot do. The trial court’s

       Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 17 of 18
       findings are supported by the evidence, and its findings support its conclusions.

       We affirm the trial court’s termination of Mother’s parental rights over Child.


[20]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1709-JT-2203 | April 9, 2018   Page 18 of 18
