MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Oct 26 2016, 9:23 am

regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy E. Stucky                                         Gregory R. Zoeller
Stucky, Lauer & Young, LLP                                Attorney General of Indiana
Fort Wayne, Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         October 26, 2016
Child Relationship of S.P. and                            Court of Appeals Case No.
A.P. (Minor Children), and                                02A04-1604-JT-752
C.P. (Mother),                                            Appeal from the Allen Superior
                                                          Court
Appellant-Respondent,
                                                          The Hon. Charles F. Pratt, Judge
        v.                                                Trial Court Cause Nos.
                                                          02D08-1506-JT-56
The Indiana Department of                                 02D08-1506-JT-57
Child Services,
Appellee-Petitioner.




Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016      Page 1 of 12
                                             Case Summary
[1]   Appellant-Respondent C.P. (“Mother”) appeals the juvenile court’s order

      terminating her parental rights to S.P. and A.P. (collectively, the “Children”).

      She raises the following restated issue on appeal: whether the Department of

      Child Services (“DCS”) presented sufficient evidence to support the termination

      of her parental rights to the Children. Specifically, Mother contends that the

      juvenile court erroneously found that (1) there was a reasonable probability that

      the conditions resulting in the removal of the Children would not be remedied,

      (2) adoption was a satisfactory plan for the Children, and (3) termination was in

      their best interests. Concluding that the evidence is sufficient evidence to

      support the termination order, we affirm.



                              Facts and Procedural History
[2]   Mother is the biological parent of S.P., who was born on June 6, 2010, and

      A.P., who was born on October 3, 2012.1 On July 11, 2013, DCS filed petitions

      alleging the Children to be children in need of services (“CHINS”) due to

      Mother’s neglect. DCS removed the Children and placed them in foster care.

      On August 5, 2013, DCS filed amended CHINS petitions stating that, among

      other things, Mother was unable to provide the Children with appropriate




      1
        The Children have different biological fathers. The parental rights of the fathers of S.P. and A.P. were also
      terminated, but they do not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016             Page 2 of 12
housing and care and had a substance-abuse problem. At a hearing on August

8, 2013, the Children were determined to be CHINS based in part to Mother’s

admission on DCS’s allegations. Specifically, Mother admitted that:


        On or about June 2013 to about July 9, 2013, and all times
        relevant; [Mother] has been unable or unwilling to personally
        provide care and supervision for [the Children].

        On or about June 2013, July 2013, and all times relevant;
        [Mother] has been unable or unwilling to personally provide
        independent or sustainable housing for [the Children].

        ….

        On or about June 2013 or July 2013 [Mother] placed [A.P.] in an
        inappropriate living environment.

        On or about July 6, 2013 [Mother] smoked marijuana.

        [Mother] has a criminal history that involves convictions or plea
        agreements regarding illegal drugs or alcohol.

        [Mother] does not have the custody of her two oldest children.

        [Mother] has not had independent or sustainable housing for
        about three years.

        [Mother] is addicted or has substance abuse issues with alcohol
        or illegal drugs.

DCS Ex. 9 pp. 2, 3 ¶4(A). The juvenile court subsequently established a Parent

Participation Plan (“PPP”) specifying various services in which Mother was to

participate and complete in order to effectuate reunification with her Children.

At a review hearing on October 29, 2014, the juvenile court found that Mother

had not complied with the ordered services in the PPP. Consequently, the




Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016   Page 3 of 12
      juvenile court concluded that Mother had not demonstrated an ability to benefit

      from the services being offered to her.


[3]   At the March 4, 2015 permanency hearing, the court again found that Mother

      had not participated in any of the ordered services. Specifically, the juvenile

      court found that Mother had not participated in any of the home-based services

      or therapy, tested positive for illegal substances, did not complete the substance-

      abuse assessment, failed to maintain communication with DCS, and she did not

      regularly visit the Children. Based upon this information, the juvenile court

      found that it was in the Children’s best interest to change the permanency plan

      to termination of parental rights. On July 7, 2015, DCS filed its termination

      petitions.


[4]   Although Mother failed to personally attend the evidentiary hearing on the

      termination petitions on December 8 and 15, 2015, she was represented by

      counsel. At the hearing, the service providers testified that termination of

      parental rights is in the best interests of the Children. Based upon all of the

      evidence, the juvenile court found that termination of parental rights is in the

      Children’s best interests. On March 9, 2016, the juvenile court entered an order

      terminating Mother’s parental rights. In doing so, the juvenile court made the

      following pertinent specific findings:


              9. A Periodic Review Hearing was held on October 29, 2014, and
              the Court found that the Mother was not in compliance with the
              Dispositional Decree. The children were continued in licensed
              foster care.



      Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016   Page 4 of 12
        10. A Permanency Hearing was held on March 4, 2015. The
        Court found that the Mother . . . [was] not incompliance [sic]
        with the Dispositional Decree. The Mother had not participated
        in home based services or therapy. She had tested positive for
        illegal substances and had not regularly visited the children . . .
        The Court adopted a Permanency Plan that provided for the
        termination of parental rights.

        11. A Periodic Review Hearing was held on August 31, 2015, at
        which the Court found that the Mother did not have appropriate
        housing and had only visited the children on two (2) occasions
        since April 2015. The children were continued in licensed foster
        care.

        12. From the testimony of Dockside Services therapist, Melissa
        Bortom, the Court finds that the Department referred the
        [M]other to that agency for a drug and alcohol assessment. Ms.
        Bortom met with the [M]other on one (1) occasion in October
        2014. A new referral was issued in January 2015 and, again, the
        [M]other only met with the therapist on one (1) occasion. A
        third referral was made in September 2015. However the case
        was closed due to the [M]other’s noncompliance.

        13. From the testimony of Kimberly Schenk of Whitington
        Home and Services the Court finds that the Department referred
        the Mother for supervised visitation with her children. Between
        October 2014 and December 2014 the [M]other only saw the
        children two (2) times. Between March 2015 and October 2015,
        the Court finds from the testimony of Heather Plastner that the
        [M]other only exercised three (3) visits.

        14. The [M]other has not completed home based services. Nor
        according to the testimony of Robert Young, Jr. of C.A.P., Inc.
        did she complete a drug and alcohol assessment.

        15. In addition to the forgoing instances of the Mother’s
        noncompliance Department case manager Beverly Marcus
        testified and the Court finds that Mother did not complete family
        counseling nor did she comply with referrals for medication
        management through Park Center.

        ….


Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016   Page 5 of 12
              18. The child[ren]’s Court Appointed Special Advocate has also
              concluded that the child[ren]’s best interests are served by the
              termination of parental rights. In support of her conclusion she
              cites the fact that Mother has not completed any of her services
              required under the Dispositional Decree. The . . . Mother [has]
              not regularly visited the child[ren].

      Mother’s App. pp. 60, 61, 65, 66.


[5]   As of the date of the termination hearing, the Children were placed with their

      Grandmother and had lived there since November of 2015. Based upon the

      testimony of the DCS family case manager (“FCM”), the Grandmother already

      has custody of Mother’s two eldest children and is willing to adopt the

      Children.



                                 Discussion and Decision
[6]   This court has long had a highly deferential standard of review in cases

      concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836

      (Ind. Ct. App. 2001). When reviewing a termination of parental rights case, we

      will consider only the evidence and reasonable inferences that are most

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

      2004), trans. denied. Thus, we will not reweigh the evidence or judge the

      credibility of the witnesses. Id. We will only set aside the court judgment

      terminating a parent-child relationship if it is clearly erroneous. In re B.J., 879

      N.E.2d 7, 14 (Ind. Ct. App. 2008).


[7]   The traditional right of a parent to establish a home and raise her children is

      protected by the Fourteenth Amendment to the United States Constitution.
      Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016   Page 6 of 12
      Bester v. Lake Cnty. Office of Family and Children, 839 N.E.2d 143, 145 (Ind. 2005).

      Furthermore, we acknowledge that the parent-child relationship is “one of the

      most valued relationships of our culture.” Id. However, parental rights are not

      absolute and the law allows for the termination of such rights when a parent is

      unable or unwilling to meet her responsibilities as a parent. In re T.F., 743

      N.E.2d 766, 773 (Ind. Ct. App. 2001), trans denied. The purpose of terminating

      parental rights is to protect the child, not to punish the parent. Id. The juvenile

      court may terminate the parental rights if the child’s emotional and physical

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

      has suffered from irreversible harm. Id.


[8]   Before an involuntary termination of parental rights may occur, DCS is

      required to prove by clear and convincing evidence that:


              (A) one (1) of the following exists:

                       (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; or

                       (iii) the child has been removed from the parent and has
                       been under the supervision of a county office of family and
                       children 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:
      Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016   Page 7 of 12
                        (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) termination is in the best interests of the child; and

               (D) there is a satisfactory plan for the care and treatment of the
               child.

       Ind. Code § 31-35-2-4(b)(2). DCS’s burden of proof for establishing these

       allegations in a termination case is one of “clear and convincing evidence.” In

       re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009).


[9]    Here, Mother does not challenge any of the juvenile court’s findings. Mother,

       however, argues that DSC failed to submit sufficient evidence to support the

       juvenile court’s findings and conclusions that (1) there was a reasonable

       probability that the conditions which resulted in the removal of the Children

       would not be remedied, (2) there was a satisfactory plan for the Children, and

       (3) termination of Mother’s parental rights was in the Children’s best interests.


          I. Conditions Resulting in Removal Not Likely to Be
                                Remedied
[10]   Mother argues that there is insufficient evidence to support the juvenile court’s

       conclusion that the conditions resulting in the Children’s removal and

       continued placement outside of her care will not be remedied. However, a
       Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016   Page 8 of 12
       juvenile court may properly consider evidence of the parent’s drug and alcohol

       abuse, history of neglect, failure to provide support, and lack of adequate

       employment and housing. McBride v. Monroe Cnty. Office of Family and Children,

       798 N.E.2d 185, 199 (Ind. Ct. App 2003). Additionally, a juvenile court can

       “reasonably consider the services offered by [DCS] to the parent and the

       parent’s response to those services.” Id. (quoting In re A.C.C., 682 N.E.2d 542,

       544 (Ind. Ct. App. 1997)). The evidence presented by DCS “need not rule out

       all possibilities of change; rather, DCS need establish only that there is a

       reasonable probability that the parent’s behavior will not change.” In re

       Involuntary Termination of Parent-Child Relationship of Kay L., 867 N.E.2d 236,

       242 (Ind. Ct. App. 2007).


[11]   Here the evidence showed that Children were originally removed from

       Mother’s care in July of 2013 due to allegations of neglect. The Children were

       later adjudicated to be CHINS and Mother was ordered to participate in,

       among other things, supervised visits; refrain from using illegal substances;

       complete a substance-abuse assessment; find and maintain suitable housing and

       employment; and participate in case management services. The Children

       continued to be placed in foster care over the course of the next three years after

       their removal from Mother’s care in 2013.


[12]   During that time, the evidence shows that extensive services were offered to

       Mother to assist her to reunite with the Children, obtain employment, and find

       and maintain suitable housing. However, according to testimony by the service

       providers, Mother did not complete the substance-abuse assessment despite

       Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016   Page 9 of 12
       having been given numerous referrals. Consequently, she did not participate in

       any substance-abuse treatment despite her admission that she had a problem.

       The evidence shows that Mother also tested positive in numerous drug screens.

       Moreover, based upon the evidence, Mother failed to consistently participate in

       and benefit from the homebased services and counseling to help her with

       parenting, employment, and securing stable housing. According to testimony

       by the service providers, parenting education could not be made available to

       Mother due to inability to comply with the other services. While Mother did

       request medication management services for depression, the record shows that

       she never followed through with any of the services and referrals that were

       offered to her. Mother cancelled or failed to attend the vast majority of the

       supervised visits with the Children. When she did attend a visitation, service

       providers described the visits as “very rough visits” because mother would

       arrive unprepared and was unable to control the Children’s behavior. Tr. p. 97.

       The juvenile court eventually concluded that the services were ineffective due to

       the Mother’s non-compliance throughout the course of the CHINS cases.

       Based upon the ample evidence regarding Mother’s non-compliance with the

       court-ordered services, we conclude that Mother has not sustained her burden

       to show that the juvenile court’s determination in this regard was clearly

       erroneous.


                          II.      Adoption as a Satisfactory Plan
[13]   Next, Mother argues that DCS did not have a satisfactory plan for the Children

       because transfer of custody or open adoption with Grandmother were better

       Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016   Page 10 of 12
       permanency options. Mother, however, does not provide further explanation

       regarding her proposed permanency options. According to the plan, the

       Children would be adopted by the Grandmother who already has custody of

       Mother’s two oldest children. Moreover, Mother herself states that she is

       amenable to a “permanent transfer of custody” to the Grandmother. This

       evidence supports the juvenile court’s finding that an adoption with

       Grandmother was a satisfactory plan. See generally In re A.K., 755 N.E.2d 1090,

       1098 (Ind. Ct. App. 2001).


                 III. Termination in Children’s Best Interests
[14]   Finally, Mother argues that termination is not in the best interests of the

       Children because there is a “readily available and currently existing permanent

       family placement” for the Children in Grandmother’s home. Appellant’s Br. p.

       16. Mother further argues that termination was not in the Children’s best

       interests “in light of the close and bonded relationship between them as

       established by the evidence of record.” Appellant’s Br. p. 16. As stated above,

       Mother has indicated that an open adoption or some form of custody

       arrangement would better serve the interests of the Children.


[15]   However, as outlined above, DCS has demonstrated that Mother has failed to

       remedy the conditions that led to the Children’s removal. Mother has not

       secured suitable housing. Mother continues to use illegal substances. Mother

       has not successfully completed the services and assessments outlined in the

       PPP. Mother’s lack of constancy, compliance, and follow-through create


       Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016   Page 11 of 12
       significant uncertainty as to when, if ever, Mother would be capable of

       providing for S.P. and A.P. In addition, the Children’s Court Appointed

       Special Advocate testified that termination of Mother’s parental rights was in

       the Children’s best interests. Such testimony is sufficient to support the juvenile

       court’s conclusion in this regard. See In re A.B., 887 N.E.2d 158, 170 (Ind. Ct.

       App. 2008).


[16]   In light of the juvenile court’s findings, considered with the Children’s need for

       consistency and permanency, we conclude that the evidence is sufficient to

       establish that termination of Mother’s parental rights is in S.P. and A.P.’s best

       interests and the juvenile court did not error in finding such. Mother’s claim to

       the contrary is no more than a request for this court to reweigh the evidence,

       which we will not do. See In re Involuntary Termination of Parental Rights of

       S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004).


[17]   The judgement of the juvenile court is affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-752 | October 26, 2016   Page 12 of 12
