MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                         Sep 27 2018, 7:55 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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         September 27, 2018
of the Parent-Child Relationship                         Court of Appeals Case No.
of C.D. and S.D.;                                        18A-JT-1293
S.C. (Mother),                                           Appeal from the Jennings Circuit
                                                         Court
Appellant-Respondent,
                                                         The Honorable Jon W. Webster,
        v.                                               Judge
                                                         Trial Court Cause Nos.
Indiana Department of Child                              40C01-1708-JT-25
                                                         40C01-1708-JT-26
Services,
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018                Page 1 of 15
                                        Statement of the Case
[1]   S.C. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor children C.D. and S.D. (“the Children”). Mother presents a single

      issue for our review, namely, whether the Indiana Department of Child Services

      (“DCS”) presented sufficient evidence to support the termination of her

      parental rights. We affirm.


                                  Facts and Procedural History
[2]   Mother and M.D. (“Father”) are the biological parents of C.D., born on

      September 4, 2013, and S.D., born on December 28, 2014. On April 21, 2016,

      DCS became aware of allegations that Mother’s boyfriend, J.P., was physically

      abusing C.D.; that both Mother and J.P. were neglecting the Children; and that

      J.P. was using heroin. At that time, DCS could not locate Father. Mother

      agreed to a safety plan, which kept the Children in her custody. But on April

      27, DCS removed the Children from Mother’s care and filed petitions alleging

      that each child was a child in need of services (“CHINS”). On August 24, the

      trial court found each of the Children to be a CHINS. One year later, on

      August 25, 2017, after Mother and Father had failed to fully comply with

      services, DCS filed petitions to terminate their parental rights over the Children.


[3]   Following a hearing, the trial court granted the petitions on April 17, 2018. In

      support of its order, the trial court entered the following findings and

      conclusions:




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 2 of 15
        There is a reasonable probability that the conditions that resulted
        in the children’s removal or the reasons for the placement outside
        the parent’s home will not be remedied, and continuation of the
        parent-child relationship poses a threat to the well-being of the
        children, in that:

                                                ***

        5. On April 21, 2016, the Indiana Department of child services
        received a report alleging the children to be victims of neglect and
        physical abuse with [S.C.] (hereinafter “Mother”) and [J.P.],
        Mother's boyfriend, as the perpetrators. The allegations were
        specifically that the children had gotten out of the home when
        Mother was at work and [J.P.] was sleeping in the home; that
        [J.P.] whipped [C.D.] until his bottom was black and blue; that
        Mother did not believe [J.P.] had caused the bruises on [C.D.];
        that Mother suffers from depression; and that [J.P.] uses heroin.

        6. Family Case Manager (hereinafter “FCM”) Kathy Toppe and
        Officer Richmond visited Mother and [J.P.] at their home. [J.P.]
        admitted to spanking both of the boys but denied leaving the
        bruises on [C.D.]

        7. FCM Toppe asked both Mother and [J.P.] to submit to a drug
        screen. Both Mother and [J.P.] submitted to a drug screen. Both
        admitted to using marijuana but denied any other drug use.

        8. Mother signed a safety plan agreeing she would not leave the
        children unsupervised with [J.P.] and that he would not be a
        caregiver for the children.

        9. On April 22, 2016, a PEDS referral was made for [C.D.] Dr.
        Huber from Riley Hospital for Children examined photos of the
        bruising on [C.D.] Dr. Huber reported the bruising is consistent
        with the child being spanked or hit; that it is very unlikely the
        bruising is self-inflicted; that the bruising is very concerning and
        is consistent with physical abuse; and that it was recommended

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 3 of 15
        that [C.D.] be seen by his pediatrician as soon as possible for a
        head to toe examination.

        10. On April 22, 2016, both [C.D.] and [S.D.] were examined by
        Dr. Holly Robinson at Kings Daughters Health. Dr. Robinson
        reported the physical exam was very concerning for physical
        abuse; that the degree of bruising present would require a very
        significant amount of force very out of proportion to a typical
        spanking; that this would not result from normal 2 and a half
        year-old activity; and that it would be inappropriate to physically
        discipline the child for leaving the house at this age at all. Dr.
        Robinson also noted that when the nurse was taking photos of
        [C.D.]’s bottom, he kept touching his bruises and saying
        “daddy.”

        11. Other witnesses reported to FCM Toppe that [J.P.] was heard
        spanking [C.D.] and [C.D.] was screaming. Witnesses also
        reported the children are locked in their room often for long
        periods of time. One witness reported Mother was observed
        feeding beer to [S.D.] on New Years until he vomited, and that
        Mother thought it was funny. Witnesses also reported seeing
        Mother and [J.P.] smoking marijuana in the presence of the
        children.

        12. On April 26, 2016, the children’s maternal grandmother,
        [K.B.], reported to FCM Toppe that Mother came over to her
        home to get french fries for the boys and left the boys in the care
        of [J.P.] This incident occurred after Mother had signed the
        safety plan agreeing not to leave the boys unsupervised with
        [J.P.]

        13. On April 26, 2016, FCM Toppe received the results of
        Mother’s drug screen, which was negative for all substances.

        14. On April 27, 2016, FCM Toppe received the results of [J.P.],s
        drug screen, which was positive for heroin and morphine.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 4 of 15
        15. On April 27, 2016, FCM Toppe, along with Officer
        Richmond, removed the children from the home due to the
        allegations of drug use, physical abuse and lack of supervision.

        16. On April 29, 2016, the Department of Child Services filed a
        petition Alleging Child in Need of Services (hereinafter
        “CHINS”) as to both [C.D.] and [S.D.]

        17. A Detention Hearing and Initial Hearing was held on the
        same day as the filing of the CHINS petition. Mother and [J.P.]
        appeared at that hearing. [Father] failed to appear. Mother and
        [J.P.] waived their right to counsel at that hearing and denied the
        allegations in the CHINS petition.

                                                ***

        19. FCM Nicholas Kirtman was assigned to this case in May
        2016.

        20. In May 2016, DCS made a referral to Ireland Home Based
        Services for Mother and [J.P.] to participate in home based
        casework services, to include a parenting assessment, and
        supervised visitation with the children.

                                                ***

        22. In May and June 2016, DCS made referrals for Mother to
        participate in services through Greenbrier, including domestic
        violence services, individual therapy and family therapy with her
        mother, [K.B.] The referral for domestic violence services was
        due to Mother having been a victim of domestic violence at the
        hands of Father.

                                                ***

        24. In August 2016, DCS referred Mother for random drug
        screens through Redwood Toxicology. Those drug screens were

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 5 of 15
        to be collected weekly in Mother’s home. Mother was also to
        submit to additional drug screens to be administered by FCM
        Kirtman at his request.

        25. On August 24, 2016, a Fact Finding Hearing was held for all
        parties. Mother and [J.P.] appeared for that hearing. Father
        again failed to appear. At that hearing, Mother and [J.P.]
        admitted the children were in need of services based upon the
        allegations of physical abuse and [C.D.] sustaining bruising while
        in [J.P.]’s care. The Court adjudicated the children to be in need
        of services based upon those admissions.

                                                ***

        28. On September 29, 2016, the Jennings circuit court held a
        Dispositional Hearing as to all parties. . . . Mother and Father
        were ordered to participate in home based counseling, a
        parenting assessment and successfully complete any
        recommendations, a substance abuse assessment and successfully
        complete any recommended treatment, a psychological
        evaluation and successfully complete any recommended
        treatment, and random drug screens. Mother and Father were
        also ordered to maintain suitable, safe and stable housing and to
        secure and maintain a legal and stable source of income.

        29. On October 11, 2016, Mother admitted herself to the stress
        center at Columbus Regional Hospital, where she remained for
        approximately nine (9) days. During her stay there, Mother
        reports she participated in groups, individual therapy and
        medication management and that she was prescribed four (4)
        different medications, none of which she is currently taking.
        Mother’s stay at the stress center coincided with the breakup of
        her relationship with [J.P.]

        30. In October 2016, Mother’s level of participation in services
        declined, and she started missing, cancelling or no-showing
        appointments with service providers.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 6 of 15
                                                ***

        32. On February 16, 2017, both Mother and Father tested
        positive for methamphetamine, amphetamine and THC.

        33. On April 5, 2017, Mother tested positive for THC.

        34. Mother no-showed for random drug screens on 4/10/17,
        4/18/17, 4/19/17, 4/21/17, 4/24/17, 5/1/17 and 5/3/17.

        35. On May 16, 2017, DCS referred Mother for a substance
        abuse assessment with Centerstone. Mother completed that
        assessment, which recommended intensive outpatient
        treatment.

        36. On May 25, 2017, DCS referred Mother for outpatient
        substance abuse treatment services with Centerstone. Mother
        never participated in those services.

        37. Mother no-showed for random drug screens on 6/19/17,
        6/23/17, 6/28/17, 7/3/17, 7/6/17 and 7/10/17.

                                                ***

        40. In July 2017, DCS referred Mother to Salvation Army
        Harbor Lights for a second substance abuse assessment. Mother
        completed that assessment, which recommended that she
        participate in detox services. DCS referred Mother for detox at
        Harbor Lights but she did not participate in that service.

        41. In July 2017, DCS also referred Mother for a recovery coach
        through Centerstone. Mother never participated in that service.

        42. In September 2017, Mother voluntarily entered the Women’s
        Healing Place in Louisville, Kentucky. Mother testified that she
        completed detox at that facility, which lasted for approximately
        six (6) days. Mother testified she then went to a halfway house

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 7 of 15
        called Women in Circle for approximately one (1) month. FCM
        Kirtman received some documentation from Mother’s stay there
        but no indication that she successfully completed their program.

        43. On September 11, 2017, Ireland Home Based Services
        unsuccessfully closed their referral for supervised visitation and
        home based casework services for Mother due to three (3)
        months of non-participation by Mother.

        44. Mother testified she returned to Indiana sometime in mid-
        October 2017 and “bounced around” from place to place.

        45. On November 1, 2017, Mother tested positive for
        methamphetamine and amphetamine.

        46. On November 7, 2017, Mother again tested positive for
        methamphetamine and amphetamine.

        47. On November 15, 2017, DCS referred Mother for home
        based casework and supervised visitation through Lifeline Youth
        and Family Services. That referral was assigned to Arielle Beller.

        48. Mother met with Arielle Beller for only 3 case management
        sessions and 5 supervised visits between November 15 and
        December 14, 2017.

        49. On November 30, 2017, the Court held a permanency
        Hearing at which it approved a concurrent permanency plan of
        adoption for the children.

        50. On December 17, 2017, Mother told Ms. Beller she would be
        going back to the Women’s Healing Place for a 30-day intensive
        outpatient treatment program. Lifeline Youth and Family
        Services closed their referral at that time.

        51. On December 17, 2017, Mother again went to the Women’s
        Healing Place in Louisville. Mother testified that she only stayed

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 8 of 15
        there for approximately three (3) days and attended AA meetings
        and groups while she was there but did not complete a substance
        abuse treatment program.

        52. Mother contacted FCM Kirtman when she again returned to
        Indiana on January 1, 2018, but was unable to provide an
        address of where she was staying.

                                                ***

        54. Mother testified she has recently been staying with various
        relatives but does not have a stable residence.

        55. Mother has not had stable housing throughout her
        involvement with DCS and does not have stable housing at this
        time.

        56. Mother has not completed any of the services she was
        ordered to complete, nor has she satisfactorily addressed her
        substance abuse issues.

                                                ***

        Termination is in the best interests of the children in that:

        1. Parents have failed to address their substance abuse issues.

        2. Parents have failed to complete any services ordered by the
        Court.

        3. Mother has continued to lack stable housing and was unable to
        provide a current address at the termination hearing, admitting
        that she still does not have stable housing.

                                                ***



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 9 of 15
                 5. Parents have not enhanced their ability to safely and
                 appropriately parent their children and are unable to provide
                 their children with a safe, stable and appropriate home.

                 6. GAL Jesseka Gibson and FCM Kirtman do not believe it
                 would be in the children’s best interest to give parents more time
                 to complete services and attempt to reunify with their children.

                 The Department of Child Services has a satisfactory plan for the
                 care and treatment of the children, which is: adoption by their
                 maternal grandmother, [K.B.]


      Appellant’s App. Vol. 2 at 71-77. Thus, the court terminated both Mother’s

      and Father’s parental rights as to the Children. This appeal ensued.1


                                          Discussion and Decision
[4]   We begin our review of this issue 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.




      1
          Father does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 10 of 15
      Although the right to raise one’s own child should not be terminated solely

      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.


[5]   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) (2018). 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).



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 11 of 15
[6]   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

      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.


[7]   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.


[8]   On appeal, Mother contends that the trial court erred when it concluded that

      the conditions that resulted in the Children’s removal from Mother’s care will

      not be remedied and that termination is in the Children’s best interests. Mother

      does not challenge the trial court’s conclusion that there is a reasonable

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 12 of 15
      probability that the continuation of the parent-child relationships poses a threat

      to the well-being of the Children. Because Indiana Code Section 31-35-2-

      4(b)(2)(B) is written in the disjunctive, Mother’s failure to challenge the second

      prong of that subsection means she has waived our review of the sufficiency of

      the evidence to support the court’s conclusion on either prong. 2 Accordingly,

      we turn to Mother’s sole remaining challenge on appeal, namely, whether the

      court erred when it concluded that termination is in the Children’s best

      interests.


[9]   In determining whether termination of parental rights is in the best interests of a

      child, the trial court is required to look at the totality of the evidence. A.S. v.

      Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

      “A parent’s historical inability to provide adequate housing, stability and

      supervision coupled with a current inability to provide the same will support a

      finding that termination of the parent-child relationship is in the child’s best

      interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct.

      App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

      important consideration in determining the best interests of a child.” In re A.K.,

      924 N.E.2d at 224.




      2
        Waiver notwithstanding, Mother does not challenge any of the trial court’s findings as erroneous, and
      those findings clearly support the court’s conclusions that the conditions that resulted in the Children’s
      removal and the reasons for their placement outside of Mother’s home will not be remedied and that there is
      a reasonable probability that the continuation of the parent-child relationships poses a threat to the well-being
      of the Children.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018                 Page 13 of 15
[10]   Mother contends that termination is not in the Children’s best interests because,

       while she did not fully comply with the parental participation order, she “gave

       positive [drug] screens only a handful of times,” she “continued to seek help

       and had successfully stayed sober for more than four months,” and she

       “recognizes her mental health needs and has personally sought out acute and

       long term help when necessary.” Appellant’s Br. at 17-19. Further, Mother

       maintains that the Children are “doing well in placement” with Mother’s

       mother, K.B., who had “expressly advocated for DCS to continue reunification

       services.” Id. at 19-20. Mother asserts that “[t]ermination in this case provides

       no extra stability, consistency, or assurance to these Children.” Id. at 20.


[11]   Mother’s contentions on this issue amount to a request that we reweigh the

       evidence, which we cannot do. Both DCS case manager Kirtman and the

       Guardian ad Litem testified that termination of Mother’s parental rights is in

       the Children’s best interests. Further, the undisputed evidence shows that

       Mother failed to comply with the parental participation plan, including: failure

       to appear for eleven drug screens in 2017; positive drug screens for

       methamphetamine on November 1 and November 7, 2017; failure to complete

       a drug rehabilitation program; and failure to maintain stable housing. The

       Children need consistent and reliable care, and they need permanency. The

       totality of the evidence, including Mother’s historical inability to provide a safe

       and stable home for the Children and her failure to address her mental health

       and substance abuse issues, supports the trial court’s conclusion that

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


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 14 of 15
[12]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1293 | September 27, 2018   Page 15 of 15
