MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                    FILED
regarded as precedent or cited before any                                      Apr 16 2018, 9:58 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
Amy P. Payne                                              Curtis T. Hill, Jr.
Monroe County Public Defender                             Attorney General of Indiana
Bloomington, Indiana
                                                          Larry D. Allen
                                                          Robert J. Henke
                                                          Deputies Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              April 16, 2018
Parent-Child Relationship of                              Court of Appeals Case No.
D.P., K.P., and M.P. (Minor                               53A01-1709-JT-2144
Children),                                                Appeal from the Monroe Circuit
      and                                                 Court
                                                          The Honorable Kelsey B. Hanlon,
J.P. (Mother),                                            Special Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          53C07-1605-JT-318
        v.                                                53C07-1605-JT-319
                                                          53C07-1605-JT-320
The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018              Page 1 of 11
      Bailey, Judge.



                                               Case Summary
[1]   J.P. (“Mother”) appeals the termination of her parental rights to D.P., K.P.,

      and M.P. (“the Children”), upon the petition of the Monroe County

      Department of Child Services (“the DCS”). Mother presents the sole issue of

      whether the DCS established, by clear and convincing evidence, the requisite

      statutory elements to support the termination decision. We affirm.



                                Facts and Procedural History
[2]   Mother gave birth to three children, in 2000, 2002, and 2008.1 The eldest child,

      D.P., has spina bifida and uses a wheelchair. The DCS became involved with

      the family after school personnel reported that D.P.’s catheter was not properly

      drained and he was sitting in a stained, urine-soaked chair, and Mother’s

      boyfriend called 9-1-1 to report that Mother was suicidal. On May 15, 2015,

      Mother received a drug screen and tested positive for THC, the active

      ingredient in marijuana. On May 27, 2015, she tested positive for

      methamphetamine. At that time, the Children were removed from Mother’s

      care. They were placed in the home of Mother’s parents (“Grandparents”).




      1
          Their father, Mother’s former husband, is not an active party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018   Page 2 of 11
[3]   On July 13, 2015, the Children were found to be Children in Need of Services

      (“CHINS”). Mother admitted the allegations that the Children were CHINS

      due to medical neglect and Mother’s drug use. She was ordered to participate

      in various services, including substance abuse assessment, drug screening, and

      individual therapy. She was also ordered to maintain an appropriate home and

      permit service providers to visit the home.


[4]   Mother was evaluated by a therapist and diagnosed with cannabis use disorder

      and an unspecified personality disorder with antisocial traits. Her subsequent

      participation in services was sporadic. She attended some therapy sessions and,

      on a few occasions, met with a caseworker and home-based services provider.

      However, Mother was unwilling to provide a full substance-abuse history and

      did not facilitate any home visit. Her services were suspended due to lack of

      compliance, and she did not visit with any of the Children. 2 The DCS

      scheduled 59 drug screens for Mother. She failed to show up for 11 screens and

      had positive results for 44 of the 48 drug screens administered; 4 were negative.

      Primarily, Mother tested positive for THC, but she repeatedly expressed an

      unwillingness to forgo marijuana use.


[5]   On May 17, 2016, the DCS petitioned for termination of Mother’s parental

      rights. A fact-finding hearing was conducted on April 25, 2017 and May 23,




      2
       At the request of the eldest two children, the CHINS court entered an order that no visitation between
      Mother and her eldest children take place. However, Mother was not prohibited from visitation with the
      youngest child, who expressed a desire to see Mother. Mother was informed that her visitation rights as to
      her youngest child were not suspended, but she never affirmatively requested visitation.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018           Page 3 of 11
      2017. On August 2, 2017, the trial court entered an order terminating Mother’s

      parental rights. Mother now appeals.



                                 Discussion and Decision
                  Standard of Review – Sufficiency of the Evidence
[6]   When we review whether the termination of parental rights is appropriate, we

      will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d

      1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable

      inferences that are most favorable to the judgment. Id. In so doing, we give

      “due regard” to the trial court’s unique opportunity to judge the credibility of

      the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). We will set aside

      the trial court’s judgment only if it is clearly erroneous. K.T.K. v. Ind. Dep’t of

      Child Servs, 989 N.E.2d 1225, 1229 (Ind. 2013). In order to determine whether

      a judgment terminating parental rights is clearly erroneous, we review the trial

      court’s judgment to determine whether the evidence clearly and convincingly

      supports the findings and the findings clearly and convincingly support the

      judgment. I.A., 934 N.E.2d at 1132.


        Requirements for Involuntary Termination of Parental Rights
[7]   “The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children.” In re

      Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

      of a constitutional dimension, the law provides for the termination of those


      Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018   Page 4 of 11
      rights when the parents are unable or unwilling to meet their parental

      responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143,

      147 (Ind. 2005). The State is required to prove that termination is appropriate

      by a showing of clear and convincing evidence, a higher burden than

      establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.


[8]   Indiana Code Section 31-35-2-4(b)(2) sets out the elements that the DCS must

      allege and prove by clear and convincing evidence in order to terminate a

      parent-child relationship:


              (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
      Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018   Page 5 of 11
               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.


[9]    Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

       therefore the court need only find that one of the three requirements of

       subsection (b)(2)(B) was established by clear and convincing evidence. See In re

       L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).


                                                    Analysis
[10]   Mother contends that insufficient evidence supports the termination decision.

       She concedes that the Children have been removed for the requisite time period

       and she does not specifically challenge the proof as to the element of a

       satisfactory plan. She focuses upon whether there is clear and convincing

       evidence of a reasonable probability that she would fail to remedy the

       conditions that led to the Children’s removal or that continuation of the parent-

       child relationships poses a threat to the Children’s well-being. She also focuses

       upon whether the DCS established by clear and convincing evidence that

       termination is in the Children’s best interests.


[11]   Remedying Conditions. Mother argues “it was clear error for the trial court to

       enter a judgment of termination against Mother when it was made clear that


       Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018   Page 6 of 11
       Mother was working to rectify the issues that resulted in removal of children

       from the parental home in the first place.” Appellant’s Brief at 14. According

       to Mother, the trial court’s factual findings as to her non-compliance and

       inconsistent cooperation with services are clearly erroneous. Mother asserts

       that she “reasonably complied” in light of her unfamiliarity with the legal

       process and “the gravity of her personal situation.” Appellant’s Brief at 14. At

       the termination hearing, Mother had admitted to failing to maintain contact

       with the DCS and her attorney, failing to complete therapy, failing almost all

       her drug screens, and not arranging visitation or a home inspection. She

       conceded that she was not informed as to the Children’s educational progress or

       medical procedures. However, she explained that she had gone through an

       eviction, was depressed by her sons’ rejection of visitation, and sometimes felt

       that her efforts were futile.


[12]   In determining whether the conditions resulting in the children’s removal will

       not likely be remedied, a “two-step analysis” is employed. In re E.M., 4 N.E.3d

       636, 642-43 (Ind. 2014). First, we identify the conditions that led to removal;

       and second, we must determine whether there is a reasonable probability that

       those conditions will not be remedied. Id at 643. In the second step, the trial

       court must judge parental fitness as of the time of the termination hearing,

       taking into consideration the evidence of changed conditions. Id. (citing Bester,

       839 N.E.2d at 152). The trial court is entrusted with balancing a parent’s recent

       improvements against habitual patterns of conduct. Id. The trial court has

       discretion to weigh a parent’s prior history more heavily than efforts made only


       Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018   Page 7 of 11
       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.


[13]   Here, the Children were removed because of medical neglect and Mother’s drug

       use. In this regard, the trial court made several factual findings: Mother

       intermittently participated in therapeutic services; she was inconsistent with

       participation and sometimes not candid with her providers; one lapse of

       services extended to six months; Mother took limited accountability for her

       situation; Mother failed most drug screens administered to her; Mother stated

       to multiple persons that she did not intend to stop using marijuana; Mother had

       a pattern of failing to meet D.P.’s medical needs; Riley Children’s Hospital

       personnel were unable to reach Mother during D.P.’s admission; and Mother

       had not made meaningful progress toward enhancing her parental abilities.


[14]   The findings have evidentiary support. Family Case Manager Amanda Grossi

       (“FCM Grossi”) testified that Mother did not maintain contact with DCS – it

       became “kind of hit and miss.” (Tr. at 141.) FCM Grossi also testified

       regarding Mother’s attitude toward marijuana use and her opposition to

       services. Although Mother cooperated with the administration of numerous

       drug screens, she failed most of them and expressed the opinion that she did not

       need services to be successful. Mother also asserted that marijuana was legal in

       some other states and opined that the DCS should offer her a reward for ceasing

       marijuana use. At times, Mother self-reported that she had ceased using

       marijuana, in contradiction to the drug screen results.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018   Page 8 of 11
[15]   Court Appointed Special Advocate Angie Raymond (“the CASA”) testified

       that Mother initially refused to engage with her while reportedly “trying to get

       her life stabilized.” (Tr. at 179.) Mother later engaged with the CASA, but

       “consistently stated she was not willing to consider herself as someone who is

       dependent on substances and she was not going to engage in removing her use

       of marijuana from her life.” (Tr. at 180.) The CASA explained that visitation

       had been arranged for Mother and her youngest child, but Mother failed to

       show up for the first visit, and then failed to confirm a second visit. According

       to the CASA, the child was very upset and the CASA would no longer

       recommend visitation. Mother’s home-based case worker testified that she was

       unable to gain access to Mother’s home and Mother’s services were terminated

       for non-compliance, specifically: “I was unable to get her to return contact [sic]

       for appointments and to show for appointments that were scheduled.” (Tr. at

       51.) Similarly, Mother’s therapist testified that Mother had stopped attending

       sessions and he had attempted to reach her to reinstate services, without

       success.


[16]   In sum, the DCS presented evidence that Mother did not perceive that she had

       a substance abuse problem and did not complete any of the services offered to

       her. Mother insists that she “truly worked to remedy the conditions of her

       family situation” but the trial court “failed to fully appreciate” her efforts.

       Appellant’s Brief at 23. In essence, Mother is asking that we reweigh the

       evidence and accord greater weight to her testimony of employment, current

       housing stability, and future aspirations. We will not do so. In re V.A., 51


       Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018   Page 9 of 11
       N.E.3d at 1143. The DCS presented clear and convincing evidence from which

       the trial court could conclude that there is a reasonable probability that the

       conditions that led to the Children’s removal will not be remedied.3


[17]   Best Interests. Mother also contends that the DCS did not present clear and

       convincing evidence that termination is in the Children’s best interests. In

       determining what is in a child’s best interests, the court must look to the totality

       of the evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans.

       denied. Here, there is evidence that the Children have progressed in

       Grandparents’ care, where they receive appropriate educational instruction and

       medical care. Grandparents have expressed a willingness to adopt the Children

       and the Children have expressed a desire to be adopted by Grandparents.

       Meanwhile, Mother has not availed herself of services so as to maintain

       relationships with the Children and make meaningful progress in remedying the

       conditions that led to removal. The GAL and FCM Grossi recommended

       termination of Mother’s parental rights.


[18]   We have previously held that recommendations by the case manager and

       CASA to terminate parental rights, in addition to evidence that the conditions

       resulting in removal will not be remedied, is sufficient to show by clear and

       convincing evidence that termination is in the child’s best interests. Id. at 1158-




       3
         Because one of the three requirements of Indiana Code Section 31-35-2-4(b)(2)(B) has been met, we need
       not address Mother’s argument that continuation of the parent-child relationships does not pose a threat to
       the Children.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018           Page 10 of 11
       59. Here, the DCS showed, by clear and convincing evidence, that termination

       of Mother’s parental rights was in the Children’s best interests.



                                                Conclusion
[19]   The DCS established by clear and convincing evidence the requisite elements to

       support the termination of parental rights.


[20]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1709-JT-2144 | April 16, 2018   Page 11 of 11
