MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                          Feb 25 2019, 8:40 am
regarded as precedent or cited before any
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
Steven J. Halbert                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Erik J. Bryant
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of The Involuntary                          February 25, 2019
Termination of Parent-Child                               Court of Appeals Case No.
Relationship of:                                          18A-JT-2157
J.G. and J.B. (Minor Children)                            Appeal from the Marion Superior
                                                          Court Juvenile Division
        and
                                                          The Honorable Marilyn Moores,
B.B. (Mother),                                            Judge
Appellant-Respondent,                                     The Honorable Larry Bradley,
                                                          Magistrate
        v.                                                Trial Court Cause Nos.
                                                          49D09-1802-JT-167, 49D09-1802-
Indiana Department of Child                               JT-168
Services,
Appellee-Petitioner,




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019                  Page 1 of 14
      Child Advocates, Inc.

      Guardian ad Litem.




      Altice, Judge.


                                                   Case Summary


[1]   B.B. (Mother) appeals the termination of her parental rights to her two minor

      children, J.G. and J.B. (collectively, the Children). She contends that the trial

      court misapplied the termination statute when it considered the conditions

      relating to the continued removal of the Children from her care rather than just

      the initial reason for removal. Mother also argues that there was insufficient

      evidence that continuing the parent-child relationship posed a threat to the well-

      being of the Children.


[2]   We affirm.1


                                          Facts & Procedural History




      1
       J.B.’s father is unknown. J.G.’s father’s parental rights were terminated, but he does not participate in this
      appeal from the termination order. Accordingly, we will focus on the facts related to Mother.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019                   Page 2 of 14
[3]   The Indiana Department of Child Services (DCS) became involved with the

      family shortly after Mother gave birth to J.B. on September 5, 2016. J.G.,

      Mother’s older son, had been born on November 25, 2014. DCS filed a child in

      need of services (CHINS) petition on September 15, 2016, alleging that Mother

      had failed to provide the Children with a safe and appropriate living

      environment free from substance abuse. Specifically, DCS alleged that Mother

      tested positive for marijuana and opiates at the time of J.B.’s birth, which she

      admitted using during her pregnancy without a prescription, and that J.B. was

      admitted to the NICU with signs of respiratory distress and poor feeding.


[4]   At the initial CHINS hearing on September 19, 2016, the trial court accepted

      DCS’s recommendations and ordered that the Children remain in Mother’s

      care “conditioned upon [Mother’s] participation in a substance abuse

      assessment, random drug screens, home-based therapy, [and other services].”

      Exhibits, Petitioner’s Exhibit 3.


[5]   Mother did not appear for a pre-trial hearing on December 9, 2016, or at the

      scheduled fact-finding hearing on January 13, 2017. Mother’s counsel

      informed the trial court at the January hearing that Mother was incarcerated for

      a probation violation. In light of Mother’s incarceration, DCS requested

      removal of the Children from her care. The court so ordered, and the Children

      were placed in the care of relatives, where they remain to this day. The court

      rescheduled the fact-finding hearing, which was again rescheduled due to

      Mother’s continued incarceration. She was released in mid-February.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 3 of 14
[6]   At the fact-finding hearing on February 24, 2017, Mother appeared with

      counsel and entered into the following admission: “Mother has substance abuse

      issues that the coercive intervention of the court is needed to assist with.”

      Exhibits, Petitioner’s Exhibit 8. Based on Mother’s admission, the trial court

      adjudicated the Children CHINS and found that it was in their best interests to

      continue in relative placement.


[7]   On March 24, 2017, the court issued a dispositional order and a parental

      participation order. Specifically, the court ordered Mother to participate in and

      follow all recommendations of home-based therapy and home-based case

      management, to complete a substance abuse assessment and follow all

      treatment recommendations, and to submit to random drug screens.


[8]   The court changed Mother’s parenting time from unsupervised to supervised on

      June 19, 2017. That same month, Mother did not appear for a periodic review

      hearing. At the conclusion of the hearing, the court determined that “[t]he

      circumstances which caused the children’s removal have not been alleviated”

      and that the “services offered and available have not been effective or

      completed”. Exhibits, Petitioner’s Exhibit 12. The permanency plan continued

      to be reunification with Mother.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 4 of 14
[9]    Following a permanency hearing on January 8, 2018, which Mother did not

       attend because she was incarcerated,2 the trial court changed the permanency

       plan to adoption. In this regard, the court noted that the Children were

       adjudicated CHINS based on Mother’s illegal use of drugs, Mother had been

       “unsuccessfully discharged from all services”, and her whereabouts were

       unknown. Exhibits, Petitioner’s Exhibit 14.


[10]   On February 12, 2018, DCS filed petitions to terminate Mother’s parental rights

       to J.G. and J.B. The termination fact-finding hearing was held on July 16 and

       30, 2018. Mother attended only the first day of the hearing. Service providers

       consistently testified regarding Mother’s lack of participation in services, her

       frequent cancellations and no-shows, and her general lack of progress. All of

       Mother’s services had been cancelled due to noncompliance. In fact, Mother

       told her home-based caseworker that she was done with services and was going

       to allow the Children to be adopted. Additionally, Mother never took

       advantage of recommended intensive out-patient treatment for substance abuse

       and last took a random drug screen on October 18, 2017.3 At the time of the

       final hearing, Mother did not have a home or a job, and her sobriety was




       2
        It appears that Mother was incarcerated – for a second time during the CHINS proceedings – from
       approximately October 2017 to February 2018.
       3
         Mother had a period of compliance between February and April 2016 and then participated in some screens
       in October 2017, but she was a no-show for the vast majority of her random drug screens.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019            Page 5 of 14
       unproven. She also had a new criminal drug charge that was filed against her

       on March 26, 2018.


[11]   Both the family case manager and the Guardian ad Litem opined at the hearing

       that termination was in the Children’s best interests. The Children had been in

       the same placement, with their maternal grandparents, since their removal from

       Mother’s care in January 2017. This was a pre-adoptive home in which the

       Children were doing very well.


[12]   On August 10, 2018, the trial court ordered the termination of the parent-child

       relationship between Mother and the Children. In its order, the trial court

       made the following relevant factual findings, none of which are challenged on

       appeal by Mother:


               9. Case management was in effect for [Mother] between Spring
               of 2017, until it closed unsuccessfully in May of 2018. Goals
               were to obtain housing and employment, to create a budget, and
               work on parenting skills.


               10. [Mother] has lacked stable independent housing, having lived
               with relatives or a boyfriend, and having moved several times.
               Included in her unstable housing are periods of incarceration.


               11. As of July 20, 2018, [Mother] was homeless.


               12. [Mother] failed to obtain employment and therefore a budget
               could not be worked on. One job was lined up but [Mother]
               became incarcerated and unavailable.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 6 of 14
        13. [Mother] was very inconsistent in attending case
        management sessions, eventually stopping. Due to a lack of
        taking responsibility, and always crying, she failed to get a lot
        done in her case management.


        14. [Mother’s] case manager had concerns regarding [her]
        parenting role and discipline ideals.


        15. [Mother] last saw the children during the spring of 2018.
        Although she was to have three parenting time sessions per week,
        she cancelled several sessions and failed to appear at several
        sessions. Eventually, she stopped visits and the parenting time
        referral closed in May of 2018 due to [her] noncompliance.


        16. [Mother] was appropriate in the supervised visits. She
        appeared bonded with her children and interacted with them
        well.


        17. Although outpatient substance abuse treatment was referred
        more than once, there is no evidence that [Mother] ever
        completed treatment. She currently has a Possession of a
        Controlled Substance charge pending in Johnson County.


        18. [Mother] has not submitted to a random drug screen through
        Redwood Toxicology since October of 2017.


        19. On January 8, 2018, the children’s plan for permanency
        change from reunification to adoption with the Court finding
        relevant to [Mother], in-part, that DCS filed a CHINS Petition
        alleging the children were in need of services due to mother using
        methamphetamine, heroin, and opiates, and parents have been
        unsuccessfully discharged from all services and their whereabouts
        are unknown.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 7 of 14
               20. [Mother] has not demonstrated any progress made since the
               change of the children’s permanency plan.


       Appellant’s Appendix at 63-64.


[13]   Based on its findings of fact, the trial court concluded by clear and convincing

       evidence:


               There is a reasonable probability that the conditions that resulted
               in the children’s removal and continued placement outside the
               home will not be remedied by their mother who has
               demonstrated she is unable or unwilling to make the effort
               needed to overcome substance abuse and instability to be an
               appropriate parent.


       Id. at 64. Additionally, the court concluded there was a reasonable probability

       that continuation of the parent-child relationship posed a threat to the

       Children’s well-being because “it would pose as a barrier to obtaining

       permanency for them through an adoption when respondent parents have

       stated they are done with services and would let the children be adopted.” Id.

       Finally, the court made relevant findings and concluded that termination of the

       parent-child relationship was in the best interests of the Children and that a

       satisfactory plan for their future care and treatment existed (that is, adoption).

       Mother now appeals.


                                            Discussion & Decision


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

       evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 8 of 14
       (Ind. 2016). Instead, we consider only the evidence and reasonable inferences

       most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. In deference to the trial court’s unique position to assess

       the evidence, we will set aside its judgment terminating a parent-child

       relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied.


[15]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

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

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[16]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:


               (B) that one (1) of the following is true:




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 9 of 14
                      (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[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child and that there is a

       satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

       4(b)(2)(C), (D).


[17]   On appeal, Mother challenges only the trial court’s determinations relating to

       I.C. § 31-35-2-4(b)(2)(B)(i) and (ii). Because DCS was required to establish just

       one of these alternative requirements by clear and convincing evidence, we

       focus our review on subsection (b)(2)(B)(i) and the trial court’s following

       conclusion:


               There is a reasonable probability that the conditions that resulted
               in the children’s removal and continued placement outside the
               home will not be remedied by their mother who has
               demonstrated she is unable or unwilling to make the effort
               needed to overcome substance abuse and instability to be an
               appropriate parent.


       Appellant’s Appendix at 64.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 10 of 14
[18]   Mother’s argument is that the trial court was limited by statute and case law to

       considering only the condition that led to the removal of the Children from her

       care (that is, her incarceration). In other words, she contends that the trial court

       was precluded from considering conditions related to the continued placement

       of the Children outside her home after her release from incarceration (that is,

       her substance abuse and related instability). Mother asserts that the trial court’s

       “distortion of the statute renders the termination process to be a foregone

       conclusion and violates the parent’s due process right to receive a

       fundamentally fair hearing.” Appellant’s Brief at 8.


[19]   We find Mother’s argument perplexing, as it is well established that an analysis

       under I.C. § 31-35-2-4(b)(2)(B)(i) first requires us to “ascertain what conditions

       led to the [Children’s] placement and retention in foster care.” K.T.K. v. Ind.

       Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013) (emphasis supplied); see

       also In re D.K., 968 N.E.2d 792, 798 (Ind. Ct. App. 2012) (“a court may consider

       not only the basis for a child’s initial removal from the parent’s care, but also

       any reasons for a child’s continued placement away from the parent”); In re

       A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005) (“it is not just the basis for the

       initial removal of the child that may be considered for purposes of determining

       whether a parent’s rights should be terminated, but also those bases resulting in

       the continued placement outside of the home”), trans. denied.


[20]   Here, the record makes clear that DCS became involved with the family due to

       Mother’s substance abuse. The Children were initially allowed to stay in

       Mother’s care, while she engaged in services, but were removed when she

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 11 of 14
       became incarcerated four months into the CHINS proceedings. Upon Mother’s

       release from jail about a month later, the Children were not returned to her

       care. Rather, on February 24, 2017, the Children were adjudicated CHINS

       based on Mother’s admission that she had substance abuse issues and needed

       assistance through the coercive intervention of the court, and the trial court

       ordered the continued placement of the Children in relative care.


[21]   The trial court’s dispositional order, issued in March 2017, focused on services

       related to Mother’s substance abuse issues and related instability. Specifically,

       Mother was ordered to participate in and follow all recommendations of home-

       based therapy and home-based case management, to a complete substance

       abuse assessment and follow all treatment recommendations, and to submit to

       random drug screens. Following subsequent CHINS hearings, the court

       consistently concluded that the circumstances that caused the Children’s

       removal had not been alleviated and ordered that the Children remain in

       relative placement. When the trial court changed the plan to adoption in

       January 2018, the court noted that the basis of the CHINS adjudication was

       Mother’s illegal use of drugs and that Mother had since been unsuccessfully

       discharged from all services and her whereabouts were unknown. In fact,

       Mother was incarcerated again.


[22]   The trial court properly considered the conditions that led to the CHINS

       adjudications and the Children’s continued placement outside of Mother’s care.

       Mother’s substance abuse and instability arising therefrom were the focus of the

       underlying CHINS proceedings. The evidence clearly and convincingly

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 12 of 14
       establishes that Mother was either unable or unwilling to make the effort

       needed to overcome these issues. At the time of the termination hearing,

       Mother had not participated in a random drug screen for eight months, had a

       new criminal drug charge, had been unsuccessfully discharged from all services,

       and was homeless and unemployed. She did not even show up for the final day

       of the termination hearing.


[23]   The evidence amply supports the court’s determination by clear and convincing

       evidence that there is a reasonable probability that the conditions resulting in

       the Children’s removal or continued placement outside Mother’s home will not

       be remedied. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001) (court should

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

       hearing, taking into consideration evidence of changed conditions, habitual

       patterns of conduct, and the parent’s response to services offered by DCS),

       trans. denied.


[24]   Having upheld the trial court’s determination regarding the probability of

       remedying the conditions resulting in the Children’s placement outside

       Mother’s home, we need not address her argument concerning the alternative

       basis for termination – that continuation of the parent-child relationship posed a

       threat to the well-being of the Children. Further, Mother does not challenge the

       trial court’s determinations with respect to the other statutory requirements for

       termination. Accordingly, we affirm the termination of the parent-child

       relationship between Mother and the Children.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 13 of 14
[25]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2157 | February 25, 2019   Page 14 of 14
