MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jul 17 2018, 9:19 am
court except for the purpose of establishing
the defense of res judicata, collateral                                            CLERK
                                                                               Indiana Supreme Court
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estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT B.H.                               ATTORNEYS FOR APPELLEE
Harold E. Amstutz                                         Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana

ATTORNEY FOR APPELLANT D.A.                               Abigail R. Recker
                                                          Deputy Attorney General
Cynthia Phillips Smith                                    Indianapolis, Indiana
Law Office of Cynthia P. Smith
Lafayette, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         July 17, 2018
Child Relationship of: T.H.                               Court of Appeals Case No.
(Minor Child),                                            18A-JT-423
                                                          Appeal from the Tippecanoe
and                                                       Superior Court
                                                          The Honorable Faith A. Graham,
B.H. (Father) and D.A.                                    Judge
(Mother),                                                 Trial Court Cause No.
Appellants-Respondents,                                   79D03-1707-JT-70

        v.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018                           Page 1 of 11
      Indiana Department of Child
      Services,
      Appellee-Petitioner.




      Bradford, Judge.



                                           Case Summary
[1]   B.H. (“Father”) and D.A. (“Mother”) (collectively, “Parents”) appeal the

      juvenile court’s order terminating their parental rights to T.H. (“the Child”).

      On October 25, 2016, the Indiana Department of Child Services (“DCS”)

      became involved in the Child’s life after Mother was arrested on drug-related

      charges. The Child was subsequently determined to be a child in need of

      services (“CHINS”) and Parents were ordered to complete certain services.

      They failed to successfully do so.


[2]   DCS filed petitions seeking the termination of Parents’ parental rights to the

      Child on July 27, 2017. Following an evidentiary hearing, the juvenile court

      issued an order granting DCS’s petitions. On appeal, Parents contend that

      DCS did not provide sufficient evidence to support the termination of their

      parental rights. We affirm.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 2 of 11
                             Facts and Procedural History
[3]   The Child was born on March 14, 2016. He was removed from Mother’s home

      on October 25, 2016, after she was arrested on drug-related charges and was

      placed with a relative. Two days later, on October 27, 2016, DCS filed a

      petition alleging that the Child was a CHINS. At this time, Father’s identity

      was unknown. The petition alleged that (1) Mother was arrested after

      marijuana and heroin were recovered from her home; (2) when authorities

      arrived at the home, the Child “was strapped into his stroller which was sitting

      close to a table containing a pile of marijuana and a half-smoked blunt”; and (3)

      there were no other adult caregivers available at the time of Mother’s arrest.

      Ex. Vol. I, p. 13. The CHINS petition was amended on November 2, 2016, to

      include Father. Following an evidentiary hearing, the juvenile court found the

      Child to be a CHINS and noted that Father was not available to care for the

      Child due to his incarceration.


[4]   The juvenile court conducted a dispositional hearing after which Mother was

      ordered to (1) complete a substance-abuse and mental-health assessment and

      follow all recommendations, (2) participate in home-based services, (3) remain

      drug-and-alcohol-free for the duration of the case, (4) participate in parenting

      time, and (5) participate in random drug screening. Father was ordered to (1)

      complete an updated substance-abuse assessment and follow all

      recommendations, (2) participate in home-based services, (3) submit to random

      drug screening, (4) remain drug-and-alcohol-free, and (5) participate in



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 3 of 11
      parenting time. Neither Mother nor Father successfully complete the ordered

      services.


[5]   On July 27, 2017, DCS filed petitions seeking the termination of Parents’

      parental rights to the Child. The juvenile court conducted an evidentiary

      hearing on DCS’s petitions on October 18, 2017. During the evidentiary

      hearing, DCS presented evidence indicating that (1) Mother displayed a pattern

      of combative and threatening behavior; (2) Mother lacks the ability to make

      healthy choices for both herself and the Child; (3) although Mother had made

      some progress, concerns remain about whether this progress would last as she

      has not displayed the motivation or commitment to making lasting positive

      changes; (4) Mother tested positive for drugs on at least fifteen separate

      occasions; (5) Father largely failed to participate in service and has tested

      positive for drugs; (6) termination of the Parents’ parental rights was in the

      Child’s best interests; and (7) its plan was for the Child to be adopted. For their

      part, Parents argued that they loved the Child and had begun to take the steps

      necessary to improve their situations with the hopes of one day being in the

      position to provide adequate care for the Child. On January 23, 2018, the

      juvenile court issued an order terminating Parents’ parental rights to the Child.



                                 Discussion and Decision
[6]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their child. Bester v.

      Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 4 of 11
      Although parental rights are of a constitutional dimension, the law allows for

      the termination of those rights when parents are unable or unwilling to meet

      their parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.

      2001), trans. denied. Parental rights, therefore, are not absolute and must be

      subordinated to the best interests of the child. Id. Termination of parental

      rights is proper where the child’s emotional and physical development is

      threatened. Id. The juvenile court need not wait until the child is irreversibly

      harmed such that his physical, mental, and social development is permanently

      impaired before terminating the parent-child relationship. Id.


[7]   Parents contend that the evidence is insufficient to sustain the termination of

      their parental rights to the Child. In reviewing termination proceedings on

      appeal, this court will not reweigh the evidence or assess the credibility of the

      witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d

      874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the

      juvenile court’s decision and reasonable inferences drawn therefrom. Id.

      Where, as here, the juvenile court includes findings of fact and conclusions

      thereon in its order terminating parental rights, our standard of review is two-

      tiered. Id. First, we must determine whether the evidence supports the

      findings, and, second, whether the findings support the legal conclusions. Id.


[8]   In deference to the juvenile court’s unique position to assess the evidence, we

      set aside the juvenile court’s findings and judgment terminating a parent-child

      relationship only if they are clearly erroneous. Id. A finding of fact is clearly

      erroneous when there are no facts or inferences drawn therefrom to support it.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 5 of 11
       Id. A judgment is clearly erroneous only if the legal conclusions made by the

       juvenile court are not supported by its findings of fact, or the conclusions do not

       support the judgment. Id.


[9]    Parents claim that DCS failed to present sufficient evidence to prove by clear

       and convincing evidence that:


               (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[; or]
                     (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) termination is in the best interests of the child[.]


[10]   Ind. Code § 31-35-2-4(b)(2).1 Because Parents have filed separate appellate

       briefs and have addressed their claims separately, we will do the same.


                                                   I. Mother
                       A. Indiana Code Section 31-35-2-4(b)(2)(B)
[11]   It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

       in the disjunctive, the juvenile court need only find either that (1) the conditions

       resulting in removal from or continued placement outside the parents’ home




       1
         Neither Mother nor Father dispute that DCS presented sufficient evidence to support the first and fourth
       elements set forth in Indiana Code section 31-35-2-4(b)(2).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018                     Page 6 of 11
       will not be remedied, (2) the continuation of the parent-child relationship poses

       a threat to the child, or (3) the child has been adjudicated CHINS on two

       separate occasions. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003),

       trans. denied. Therefore, where the juvenile court determines that one of the

       above-mentioned factors has been proven and there is sufficient evidence in the

       record supporting the juvenile court’s determination, it is not necessary for DCS

       to prove, or for the juvenile court to find, either of the other two factors listed in

       Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.


[12]   In this case, the juvenile court concluded as follows:


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


       Mother’s App. Vol. II, p. 10. In reaching this conclusion, the juvenile court

       found that Mother failed to refrain from using drugs, testing positive for drugs

       on fifteen occasions and failing to submit to other drug screens as requested.

       The juvenile court also found that Mother (1) has displayed a pattern of and

       continued to engage in delinquent and criminal behavior; (2) demonstrated

       hostile and threatening behavior toward service provides, even in the Child’s

       presence; and (3) refused to fully engage in services. Mother does not challenge

       the accuracy of any of the juvenile court’s findings, but rather points to evidence


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 7 of 11
       that she claims demonstrates that she had begun to take the steps necessary to

       improve her situation.


[13]   The juvenile court acknowledged Mother’s recent progress, but found that

       Mother had “since made reckless decisions demonstrating an inability to

       sustain such progress long-term.” Mother’s App. Vol. II, p. 9. In this vein,

       Laura Houze, a therapist who worked with Mother, expressed concerns about

       whether Mother could sustain her recent progress because Mother had not

       displayed “a motivation or commitment to making positive changes” or taken

       ownership of the actions that led to the Child’s removal from her care. Tr. Vol.

       II, p. 67. In addition, Mother continued to engage in angry outbursts aimed at

       those attempting to help her, including her attorney, up until the start of the

       evidentiary hearing. Mother has failed to prove that she can maintain stable

       employment or housing. She has also indicated that she sees nothing wrong

       with the use of marijuana. Mother’s pattern of unwillingness to address the

       highlighted issues and cooperate with those providing services, in conjunction

       with her failure to exhibit an ability to make lasting progress, is sufficient to

       support the juvenile court’s finding that the conditions which led to the Child’s

       removal from her care are not likely to change. See Lang v. Stark Cty. Office of

       Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (providing that “A

       pattern of unwillingness to deal with parenting problems and to cooperate with

       those providing social services, in conjunction with unchanged conditions,

       support a finding that there exists no reasonable probability that the conditions

       will change”). Mother’s claim to the contrary merely amounts to an invitation


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 8 of 11
       for this court to reweigh the evidence, which we will not do. See In re S.P.H.,

       806 N.E.2d at 879.


                      B. Indiana Code Section 31-35-2-4(B)(2)(C)
[14]   We are mindful that in considering whether termination of parental rights is in

       the best interests of a child, the juvenile court is required to look beyond the

       factors identified by DCS and look to the totality of the evidence. McBride, 798

       N.E.2d at 203. In doing so, the juvenile court must subordinate the interests of

       the parent to those of the child involved. Id. Furthermore, this court has

       previously determined that the testimony of the case worker, guardian ad litem

       (“GAL”), or a court appointed special advocate (“CASA”) regarding the child’s

       need for permanency supports a finding that termination is in the child’s best

       interests. Id.; see also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996),

       trans. denied.


[15]   DCS family case manager (“FCM”) Christopher LaMar testified that

       termination of Parents’ parental rights was in the best interests of the Child.

       FCM LaMar based his opinion on Mother’s “non-compliance throughout most

       of the case, um, and [Father’s] lack of engagement with services.” Tr. Vol. II,

       p. 156. He noted that he was not convinced that Mother understood how to

       meet the Child’s needs and that he did not believe that the Child “could safely

       be returned to the primary care, custody, and control of either parent.” Tr. Vol.

       II, p. 156. Likewise, Suzanne Magnante, the CASA assigned to the Child’s

       case, testified that she believed that termination of Parents’ parental rights was


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 9 of 11
       in the Child’s best interests. This testimony is sufficient to sustain the juvenile

       court’s finding to that effect.


                                                    II. Father
                       A. Indiana Code Section 31-35-2-4(b)(2)(B)
[16]   Father claims that the evidence is insufficient to sustain the juvenile court’s

       determination that the conditions resulting in the Child’s removal from the

       home would not be remedied. In making this claim, Father presents no

       argument relating to himself. Instead, he relies solely on evidence relating to

       Mother. We concluded above that, with respect to Mother, the evidence

       demonstrated that it was not likely that the conditions resulting in the Child’s

       removal would be remedied. Because Father relies only on these same facts, we

       reach the same conclusion, i.e., that the evidence is sufficient to sustain the

       juvenile court’s finding that the condition will not be remedied. 2


                       B. Indiana Code Section 31-35-2-4(B)(2)(C)
[17]   Father also claims that the evidence is insufficient to sustain the juvenile court’s

       determination that termination of his parental rights was in the Child’s best

       interests. In making this claim, Father argues that he was the “forgotten

       parent” and suggests that the juvenile court’s determination was based solely on




       2
         Again, because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not consider
       whether the evidence is sufficient to sustain the juvenile court’s finding regarding whether the continued
       relationship poses a threat to the Child’s well-being. See In re S.P.H., 806 N.E.2d at 882.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018                    Page 10 of 11
       testimony relating to Mother. Father’s Br. p. 14. Contrary to Father’s

       suggestion, however, both FCM LaMar and the Child’s CASA testified that

       termination of the Parents’ parental rights was in the Child’s best interests.

       Their opinions were given in relation to both Mother and Father and were not

       limited to one parent. As we concluded above, their testimony was sufficient to

       prove that the termination of Father’s parental rights was in the Child’s best

       interests.



                                                Conclusion
[18]   In sum, we conclude that neither Mother nor Father have established that the

       evidence presented by DCS was insufficient to sustain the juvenile court’s order

       terminating their parental rights to the Child. Accordingly, we affirm.


[19]   The judgment of the trial court is affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 11 of 11
