MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana         Jun 25 2015, 10:32 am




                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 25, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of: L.G. (Minor Child) and                                49A02-1412-JT-841
                                                          Appeal from the Marion Superior
D.G. (Father),                                            Court

Appellant-Respondent,                                     The Honorable Gary K. Chavers,
                                                          Judge Pro Tem
        v.
                                                          The Honorable Larry E. Bradley,
                                                          Magistrate
Indiana Department of Child
Services,                                                 Case No. 49D09-1406-JT-266

Appellee-Petitioner

and




Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015      Page 1 of 13
      Child Advocates, Inc.,
      Guardian ad Litem




      Crone, Judge.


                                             Case Summary
[1]   D.G. (“Father”) appeals the involuntary termination of his parental rights to his

      minor child L.G. We affirm.


                                  Facts and Procedural History
[2]   In July of 2012, K.P. (“Mother”) was pregnant and living with Father and her

      two minor children from a different father, when she overdosed on Klonopin,

      Tramadol, and Flexeril. Two months later, she gave birth to L.G. L.G.’s

      meconium was screened following birth and tested positive for marijuana and

      hydrocodone. Consequently, a report was forwarded to the Indiana

      Department of Child Services (“DCS”). Mother and Father signed an informal

      adjustment agreement with DCS that was approved by the trial court on

      October 22, 2012. In that agreement, Mother and Father agreed to complete

      homebased counseling, random drug screens, and substance use assessments.

      In February and March 2013, Mother and Father appeared before the trial court

      due to lack of progress with services and their repeated failures to report for

      random drug screens. During this period, Father tested positive for THC on

      more than one occasion. Following a review hearing, the trial court


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015   Page 2 of 13
      admonished both parents that they needed to comply with services. Thereafter,

      Mother and Father continued to cancel appointments and failed to complete

      services. In April 2013, Mother tested positive for numerous substances and,

      during a meeting with their DCS family case manager (“FCM”), the FCM

      noted that Mother had a black eye. Father informed the FCM that the family

      home was being condemned by the health department, their car was being

      repossessed, and they had very little financial resources.


[3]   DCS filed a petition alleging that all three children living in the home were

      children in need of services (“CHINS”). That petition stated,1

               On or about April 12, 2013 the [DCS] determined, by its [FCM] Leslie
               Page, the children to be in need of services because their mother,
               Mother and Father, father of L.G., have failed to provide the children
               with a safe and appropriate living environment free from substance
               abuse. The parents have been involved with the DCS through an
               Informal Adjustment Agreement (IA) due to [L.G.] being born drug
               exposed. However, services have not successfully been completed to
               remedy the reasons for the DCS’ involvement. Father has continued
               to test positive for marijuana during the IA, and the parents failed to
               report for all their drug screens resulting in their unsuccessful discharge
               from this service. In addition, Mother recently tested positive for
               marijuana, cocaine, opiates, and benzodiazepines. Mother and Father
               are also in danger of losing their housing, and they have failed to take
               necessary action to adequately address the above-mentioned issues
               despite services offered. Therefore, the coercive intervention of the
               Court is necessary to ensure the children’s safety and well being.




      1
       We note that the petitions filed with the trial court and the trial court’s resultant orders refer to the parties
      by their full names. We use “Father,” “Mother,” and the initials of any minor children where appropriate.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015                    Page 3 of 13
      Appellant’s App. at 22. An initial hearing was held that same day and the trial

      court ordered all three children removed from the home. Regarding L.G.,

      Mother admitted to the allegations in the petition that L.G. was born drug

      positive, that services were not completed, that her substance abuse issues

      needed to be addressed, and that coercive intervention of the court was

      necessary to ensure L.G.’s safety. Father waived his right to a factfinding

      hearing. On May 7, 2013, the trial court adjudicated L.G. a CHINS. The trial

      court entered a dispositional order requiring the parents to participate in

      homebased counseling, random drug and alcohol screens, and all scheduled

      visits with L.G.


[4]   After more than a year of both parents failing to consistently complete ordered

      services, DCS filed a petition to terminate their parental rights to L.G.

      Following an evidentiary hearing, the trial court entered its findings of fact and

      conclusions thereon in relevant part as follows:

              1. Father is the father of L.G., a minor child born on September 18,
              2012.
              2. Mother is the mother of L.G. She has executed consents for L.G.
              to be adopted.
              ….
              9. Disposition was held on June 4, 2013, at which time L.G.’s
              placement continued outside the home. She had been removed for at
              least six (6) months prior to this termination action being filed on June
              2, 2014.
              10. Services were ordered and referred to address issues of substance
              abuse, anger after domestic violence episode, and identify any other
              areas of concern.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015   Page 4 of 13
        11. Father was unsuccessful in completing any of the services. He
        blamed lack of transportation but was provided two months of bus
        passes during the case.
        12. Prior to random urine screens being closed, Father missed screens
        and tested positive for marijuana.
        13. Father inconsistently attended C[H]INS hearings. He blamed his
        non-attendance on no one informing him of hearings, although he was
        present when some hearings were set, had an attorney until June of
        2014, and at times was in touch with L.G.’s mother.
        14. [] [T]he C[H]INS court changed L.G.’s plan of permanency from
        reunification to adoption finding, in part, that there had been no recent
        contact with Father, he had not participated in services for the last few
        months, had not been participating in home based therapy, and was
        unsuccessfully discharged from substance abuse treatment.
        15. Father failed to appear at the Permanency Hearing.
        16. Father has not visited L.G. since February of 2014, although the
        visit referral remained open until the May 27, 2014 Permanency
        Hearing.
        17. There is a reasonable probability that the conditions that resulted
        in L.G.’s removal and continued placement outside the home will not
        be remedied by her father. Father failed to actively participate in
        services during the Informal Adjustment and C[H]INS cases to the
        extent needed to demonstrate that he is willing or able to do what was
        needed to be an appropriate parent. His lack of interest is also
        demonstrated in his inconsistent visits with L.G. and his lack of
        attendance at court hearings and Child and Family Team Meetings.
        18. Continuation of the parent-child relationship poses a threat to
        L.G.’s well-being in that it would pose a barrier to obtaining
        permanency for her through adoption when her father has not made
        the effort needed to put him in a position to offer permanency.
        Without adequately addressing conditions, Father cannot provide
        L.G. with a safe environment. It is unclear whether he could provide
        a stable home to meet L.G.’s basic needs as he does not support his
        other children and cannot afford bus tickets.
        19. L.G. has been placed in kinship care since her removal in April of
        2013. She is placed with her two half-siblings and the placement is
        pre-adoptive. L.G. is bonded with her caregiver with whom she has

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015   Page 5 of 13
               spent a majority of her life, and responds to her caregiver as her
               mother.
               20. Termination of the parent-child relationship is in the best interests
               of L.G. Termination would allow her to be adopted into a stable and
               permanent home, along with her siblings, where her needs will be
               safely met.
               21. There exists a satisfactory plan for the future care and treatment of
               L.G., that being adoption.
               22. The Guardian ad Litem recommends the permanency plan of
               adoption as being in L.G.’s best interest.
      Id. at 10-11. Accordingly, the trial court determined that DCS had proven the

      allegations of the petition to terminate parental rights by clear and convincing

      evidence and therefore terminated Father’s parental rights. Father now

      appeals.


                                     Discussion and Decision
[5]   “The purpose of terminating parental rights is not to punish parents but to

      protect their children. Although parental rights have a constitutional

      dimension, the law allows for their termination when parties are unable or

      unwilling to meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874,

      880 (Ind. Ct. App. 2004) (citation omitted). Indeed, parental interests “must be

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

      petition to terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind.

      2009).


[6]   Indiana Code Section 31-35-2-4(b) provides that a petition to terminate parental

      rights must meet the following relevant requirements:



      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015   Page 6 of 13
              (2) The petition must allege:
              (A) that one (1) of the following is true:
                       (i) The child has been removed from the parent for at least six (6)
                       months under a dispositional decree.
                       (ii) A court has entered a finding under IC 31-34-21-5.6 that
                       reasonable efforts for family preservation or reunification are not
                       required, including a description of the court’s finding, the date
                       of the finding, and the manner in which the finding was made.
                       (iii) The child has been removed from the parent and has been
                       under the supervision of a local office or probation department
                       for at least fifteen (15) months of the most recent twenty-two (22)
                       months, beginning with the date the child is removed from the
                       home as a result of the child being alleged to be a child in need of
                       services or a delinquent child;
              (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.


[7]   DCS must prove “each and every element” by clear and convincing evidence.

      G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. If the court finds that the

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

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




      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015   Page 7 of 13
[8]   We 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. Where the trial court enters findings of fact and

      conclusions thereon, we apply a two-tiered standard of review: we first

      determine whether the evidence supports the findings and then determine

      whether the findings support the 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 Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.

      Ct. App. 2004), trans. denied.


              Section 1 – The trial court’s conclusion that there is a
          reasonable probability that the conditions resulting in L.G.’s
           removal and continued placement outside Father’s care will
                    not be remedied is not clearly erroneous.2
[9]   We first address Father’s contention that the trial court erred in concluding that

      there is a reasonable probability that the conditions resulting in L.G.’s removal




      2
        We note that Father also challenges the sufficiency of the evidence to support the trial court’s conclusion
      that there is a reasonable probability that the continuation of the parent-child relationship between Father
      and L.G. poses a threat to L.G.’s well-being pursuant to Indiana Code Section 31-35-2-4(b)(2)(B)(ii).
      However, Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive and DCS was required to
      establish only one of the three requirements of subsection (B). Because we find it dispositive, we need only
      address whether there is a reasonable probability that the conditions resulting in L.G.’s removal and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015                Page 8 of 13
       and continued placement from his care will not be remedied. Our supreme

       court recently explained,

                In determining whether the conditions that resulted in the child’s
                removal … will not be remedied, we engage in a two-step analysis.
                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. In the second step, the trial court
                must judge a parent’s fitness as of the time of the termination
                proceeding, taking into consideration evidence of changed conditions
                – balancing a parent’s recent improvements against habitual pattern[s]
                of conduct to determine whether there is a substantial probability of
                future neglect and deprivation. 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. 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.
       In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (citations, quotation marks and

       some alterations omitted).


[10]   In considering the conditions that resulted in L.G.’s removal and continued

       placement outside of Father’s care, the trial court found that L.G. originally

       became the subject of an informal adjustment with DCS because L.G. was born

       with drugs in her system. Both Father and Mother were ordered to complete

       homebased counseling, random drug screens, and a substance use assessment,

       all with the goal of providing L.G. with a safe, stable, and drug-free




       continued placement outside Father’s care will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).
       Father does not challenge the trial court’s conclusions or the sufficiency of the evidence regarding the other
       statutory factors required for termination, and therefore we do not address those factors.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015                 Page 9 of 13
       environment. The record indicates that Father failed to participate in virtually

       any services offered by DCS to meet this goal and he tested positive for THC on

       multiple occasions. In addition, Father informed DCS that the home he shared

       with Mother and L.G. was being condemned by the health department and that

       they were not able to locate other housing. These factors resulted in six-month-

       old L.G.’s removal from the home.3


[11]   For almost a year following L.G.’s removal, Father continued to reject the

       services offered by DCS by missing drug screens, being discharged from

       substance abuse treatment, failing to attend hearings and meetings, and failing

       to visit with L.G. Father also failed to address his issues with domestic violence

       that had come to light during the pendency of the CHINS proceedings. Father

       gave numerous excuses for his failure to participate in services, including lack

       of transportation (despite being given two months of bus passes by DCS) or

       being unaware of scheduled meetings and hearings. At the time of the

       termination hearing, Father continued to minimize his substance abuse and

       stated that he did not believe that he needed any substance abuse treatment.


[12]   The trial court must consider a parent’s habitual pattern of conduct to

       determine whether there is a substantial probability of future neglect or




       3
         Father argues that there was no evidence that L.G. was ever “endangered” and that her initial removal from
       the home was unwarranted. First, we are troubled by Father’s lack of insight regarding parental behaviors
       that seriously impair or endanger a child’s physical or mental condition. Moreover, we will not revisit the
       sufficiency of the evidence supporting L.G.’s initial removal. Instead, we identify the conditions that led to
       L.G.’s removal and continued placement outside of Father’s care and we determine whether there is a
       reasonable probability that those conditions will not be remedied. See E.M., 4 N.E.3d at 642-43.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015             Page 10 of 13
       deprivation. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 152

       (Ind. 2005). DCS is not required to rule out all possibilities of change; rather it

       need only establish “that there is a reasonable probability that the parent’s

       behavior will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.

       2007). Based upon the clear and convincing evidence presented, we defer to the

       trial court’s determination that Father’s habitual patterns of conduct and

       unwillingness to participate in services support a conclusion that there is a

       substantial probability of future neglect. L.G. was removed from an unstable,

       unsafe, and drug-filled environment, and Father has done virtually nothing to

       remedy any of those conditions. The trial court did not clearly err in

       concluding that there is a reasonable probability that the conditions that

       resulted in L.G.’s removal and continued placement outside of Father’s care

       will not be remedied.


         Section 2 – The trial court’s conclusion that termination of
         Father’s parental rights is in the best interests of L.G. is not
                              clearly erroneous.
[13]   Father maintains that the trial court erred in determining that termination of his

       parental rights is in the best interests of L.G. In determining the best interests of

       a child, the trial court must look beyond the factors identified by DCS and

       consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.

       App. 2009). “In doing so, the trial court must subordinate the interests of the

       parent to those of the child.” Id. Children have a paramount need for

       permanency, which our supreme court has deemed a central consideration in


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015   Page 11 of 13
       determining a child’s best interests. E.M., 4 N.E.3d at 647-48. The trial court

       need not wait until a child is harmed irreversibly before terminating the parent-

       child relationship. Id. We have held that recommendations of the case

       manager and court-appointed special advocate (“CASA”), in addition to

       evidence that the conditions resulting in removal will not be remedied, are

       sufficient to establish by clear and convincing evidence that termination is in the

       child’s best interests. J.S., 906 N.E.2d at 236.


[14]   Here, FCM Terra Burns testified that she believed that termination of Father’s

       parental rights is in L.G.’s best interests. She stated that she has concerns for

       L.G.’s safety if returned to Father’s care because Father has failed to address his

       substance abuse and domestic violence issues, and he has not presented to DCS

       that he can provide stable housing. She noted that despite the fact that

       programs and services to help Father had been “referred, re-referred, and re-

       referred again,” Father wholly failed to participate in those services or to visit

       with L.G. Tr. at 15. Burns noted that L.G. had been in her preadoptive home

       virtually since birth and “that’s what she knows, and it provides her with a safe

       and stable home.” Id. at 16. Burns stated that termination was in L.G.’s best

       interests because “she needs stability.” Id.


[15]   Similarly, CASA Nancy Englert opined that termination of Father’s parental

       rights is in the best interests of L.G. She noted that Father had not participated

       in services and that he had not visited with L.G. since early 2014. She observed

       that two-year-old L.G has been placed with her half-siblings in the preadoptive



       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015   Page 12 of 13
       home since she was six months old, and that she is bonded with her caregiver

       and half-siblings and is doing very well.


[16]   Father does not dispute that L.G.’s preadoptive home is a safe and stable place,

       but he contends that there is no evidence that he could not also provide L.G.

       with a safe and stable home. We must disagree. As noted earlier, the record is

       replete with evidence that, despite ample opportunities, Father has

       demonstrated no commitment to remedying any of the conditions that resulted

       in L.G.’s removal from his care and continued placement outside the home.

       Father has continued to abuse drugs, has failed to demonstrate that he can

       maintain stable housing, and has not shown an interest in consistently visiting

       with L.G. L.G. is in need of permanency and cannot wait indefinitely for the

       safety and stability that Father appears unable and unwilling to provide. Father

       makes excuses on top of excuses for his failures and urges us to come to a

       conclusion regarding his fitness as a parent that the record simply does not

       support. Father’s arguments are merely an invitation for us to reweigh the

       evidence, which we cannot do. See D.B., 942 N.E.2d at 871.                        Under the

       circumstances, we cannot say that the trial court’s conclusion that termination

       of Father’s parental rights is in the best interests of L.G. is clearly erroneous.

       Therefore, we affirm the trial court’s order terminating Father’s parental rights

       to L.G.


[17]   Affirmed.


       Brown, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015     Page 13 of 13
