MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                     Nov 27 2017, 8:41 am
court except for the purpose of establishing
                                                                                   CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                       Curtis T. Hill, Jr.
Greenwood, Indiana                                       Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         November 27, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of R.M. (Minor Child);                                   79A02-1707-JT-1545
J.G.,                                                    Appeal from the Tippecanoe
                                                         Superior Court
Appellant-Respondent,
                                                         The Honorable Faith A. Graham,
        v.                                               Judge
                                                         Trial Court Cause No.
Indiana Department of Child                              79D03-1612-JT-115
Services,
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017        Page 1 of 16
                                       Statement of the Case
[1]   J.G. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor child R.M. (“Child”). Mother presents a single issue for our review,

      namely, whether the State presented sufficient evidence to support the

      termination of her parental rights. We affirm.


                                 Facts and Procedural History
[2]   In June 2012, Mother began dating M.M. (“Father”), and their son, Child, was

      born in February 2013. On September 1, 2015, someone contacted the Indiana

      Department of Child Services (“DCS”) to report that Father and Mother were

      intoxicated and did not know Child’s whereabouts. Later that evening,

      someone contacted DCS to report that Father and Mother had ingested

      synthetic marijuana, or “spice,” and had both been hospitalized. Thereafter,

      law enforcement filed criminal charges against Father and Mother “related to

      spice use.” Appellant’s App. Vol. 2 at 26. On September 3, DCS filed a

      petition alleging that Child was a child in need of services (“CHINS”). After

      Mother and Father failed to fully comply with services, on December 16, 2016,

      DCS filed a petition to terminate their parental rights over Child.


[3]   Following a hearing, the trial court granted the petition on June 27, 2017. In

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

      conclusions:


              FINDINGS OF FACT



      Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 2 of 16
        1. [J.G.] (DOB 6/4/1993) is the Mother and [M.M.] (DOB
        2/20/1994) is the Father of [Child] (DOB 2/26/2013).

        2. Tippecanoe County Department of Child Services (“DCS”)
        received a report on September 1, 2015[,] that the parents were
        intoxicated and did not know the location of their two (2) year
        old child. DCS received a second report on the same night that
        the parents were under the influence of spice and taken to the
        hospital.

        3. Investigation revealed that on September 1, 2015, parents were
        under the influence and police were called. Mother admitted to
        officers that a substance located in their vehicle was spice. Both
        parents were transported to the hospital for treatment. After the
        parents were discharged from the hospital, parents tried to get the
        child from Paternal Great Aunt who had been caring for the
        child. Paternal Great Aunt tried to return the child to the parents
        but found parents under the influence and unable to care for the
        child. Law enforcement and emergency medical services were
        dispatched to the home due to the condition of parents. Father
        was found passed out from spice use and Mother was located
        smoking spice. Both parents were again transported to the
        hospital for treatment and both parents admitted spice use. After
        release from the second hospitalization, both parents were later
        arrested in Clinton County on charges related to spice use.

        4. During the investigation, DCS learned the family had a history
        of moving from relative to relative. The family had been living
        with Maternal Grandmother before moving in with Paternal
        Great Grandmother about one (1) week prior. Paternal Great
        Grandmother was about to evict the parents for drug use.

        5. The child was removed from parents’ care and placed with
        relatives on September 1, 2015. DCS filed a Child in Need of
        Services (“CHINS”) petition in Cause Nos. [sic] 79D03-1509-JC-
        184. A CASA was appointed to represent the best interests of the
        child. Detention and Initial Hearings were held on September 3,

Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 3 of 16
        2015[,] at which time both parents were incarcerated. Continued
        Detention and Initial Hearings were held on September 4, 2015.

        6. At the Fact[-]Finding Hearing, Mother and Father admitted
        struggling with spice use, housing instability, and
        unemployment. Both parents agreed they were unable to care for
        the child at that time.

        7. Pursuant to the dispositional orders issued on October 9, 2015,
        Mother was offered the following services: home[-]based case
        management, substance abuse assessment and services,
        individual therapy, drug screens, and parenting time. Father was
        offered the following services: home[-]based case management,
        substance abuse assessment and services, individual therapy,
        drug screens, and parenting time. Evaluations revealed no
        barriers to each parent’s ability to participate in services and
        achieve reunification.

        8. Case conferences, family team meetings, and review hearings
        were held periodically. DCS prepared written reports and
        recommendations prior to each hearing.

        9. A permanency hearing commenced on October 18, 2016[,]
        and concluded on January 10, 2017[,] at which time the
        permanent plan was determined to be initiation of proceedings
        for termination of parental rights and adoption. DCS filed a
        Verified Petition to Terminate Parental Rights[.] The
        evidentiary hearing on said petition was held on March 14, 2017.

        10. The child has remained out of the home for over six (6)
        months from the dispositional order. In fact, the child has been
        out of the home for more than fifteen (15) of the most recent
        twenty-two (22) months.

        11. Parents have a history of instability in housing and
        employment. Parents participated only sporadically in case
        management services to address these issues. During the CHINS

Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 4 of 16
        case, parents were discharged from at least two (2) case
        management service providers.

        12. At the onset of the CHINS case, parents were homeless and
        moving from relative to relative. In March of 2016, parents
        obtained an apartment but did not have stable and sufficient
        income to support such housing for more than a few months.
        Parents separated for about two (2) months during which
        time Mother lived with Maternal Grandmother and Father lived
        with paternal relatives. Both parents currently reside with
        Paternal Grandparents and Paternal Great Grandmother in a
        home not suitable for the child[]. Paternal Grandmother has a
        history of abusing prescription medication and was incarcerated
        in 2015 (during the CHINS case) for charges related to her
        addiction. Paternal Grandfather also has a history of abusing
        pills and alcohol.

        13. Mother obtained several jobs during the CHINS case but has
        been unable to maintain any job for more than a few months at a
        time. Mother was scheduled to start a new job on the day of the
        termination hearing. Father also had multiple short-term jobs
        with his longest period of employment being approximately six
        (6) months. Father was unemployed at the time of the
        termination hearing.

        14. Parents have a history of substance use and related criminal
        activity. Prior to the CHINS case, Father had convictions for
        Possession of Marijuana (2013) and Illegal Consumption of
        Alcohol (2014) after having been committed to the Department
        of Correction as a juvenile. Both parents were arrested and
        convicted of Possession of Synthetic Marijuana at the beginning
        of the CHINS case. Mother served thirty (30) days on Home
        Detention and Father served thirty (30) days in the Clinton
        County Jail.

        15. During the CHINS case, Mother was arrested again in
        September of 2016 and spent approximately a week in jail.

Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 5 of 16
        Father was arrested again several times during the CHINS case.
        On November 10, 2015, Father was arrested for Operating While
        Intoxicated and Possession of Marijuana and later convicted. On
        January 4, 2016, Father was arrested for Leaving the Scene of an
        Accident and later convicted. Father admitted he had been
        drinking during this incident and that his vehicle caught fire after
        the crash. Days before the termination hearing, Father was
        arrested again for Possession of Synthetic Drug and Driving
        While Suspended at which time Father was on probation.

        16. Both parents completed a substance abuse assessment.
        Mother passed all drug screens collected and Father passed all
        but two (2) drug screens collected. However, during periods of
        the case, both parents failed to consistently call the drug screen
        number to determine collection dates and failed to take all drug
        screens requested.

        17. Mother completed recommended Intensive Outpatient
        Program (IOP) treatment in February of 2016. Mother attended
        individual therapy through August of 2016 then failed to attend
        three (3) scheduled sessions in September of 2016 resulting in
        discharge from treatment. Mother relapsed on synthetic
        marijuana in July of 2016 and again in September of 2016.
        Mother started inpatient treatment at Tara Treatment Center on
        October 26, 2016[,] but only completed approximately ten (10)
        days of the twenty-one (21) day program before leaving against
        staff advice on November 5, 2016. After failing to complete
        inpatient treatment, Mother attended another intake appointment
        on December 7, 2016[,] but failed to follow through with a
        recommendation to repeat IOP treatment.

        18. Father completed a substance abuse assessment and it was
        recommended that he complete IOP for synthetic marijuana
        abuse. Prior to the CHINS case, Father had been using synthetic
        marijuana four (4) or five (5) times daily for two (2) years with
        occasional periods of sobriety for up to two (2) months. Father
        had also been drinking about two (2) days per week. Father

Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 6 of 16
        completed recommended IOP treatment and six (6) weeks of
        aftercare. Father participated in approximately twelve (12)
        individual therapy sessions and then stopped attending in June of
        2016. Father tested positive for alcohol in May of 2016 and
        again in July of 2016. Father never returned to recommended
        individual counseling and was discharged from services.

        19. Both parents participated in individual therapy fairly
        consistently and both indicate that therapy was beneficial.
        However, despite therapy and other services, the parents have
        failed to demonstrate an ability to support themselves and the
        child with stable income and housing. The parents have
        continued historical patterns of substance use and criminal
        activity.

        20. Parents each completed a Parenting/Family Functioning
        Assessment[.] The therapist was concerned regarding a lack of
        comfort for the child when he was injured, lack of physical
        affection, and lack of knowledge about the child’s medical needs.
        The therapist recommended therapy, home[-]based case
        management, a bonding assessment, parenting classes, and drug
        screens for both parents. The therapist also recommended the
        parents attend the child’s medical appointments. Although
        parents attended most of the medical appointments as ordered
        and were appropriate with the child, they were argumentative
        with the relative placement. Neither parent ever completed the
        Bonding Assessment as recommended.

        21. At the beginning of the CHINS case, parents attended
        scheduled visits that went well. By approximately April of 2016,
        parenting time progressed to semi-supervised and then overnight
        visits in the home. Parents were nearing a trial home visit when
        DCS learned of a domestic violence incident and another
        incident of Father punching a hole in the wall of the child’s room
        while intoxicated. Father admitted another four (4) or five (5)
        incidents of drinking to intoxication. Visits regressed to fully


Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 7 of 16
        supervised in May of 2016 with the parents attending separately
        for a period of time.

        22. Since May of 2016, visits have remained fully supervised.
        Although parents were prepared and appropriate during visits
        attended, their attendance was inconsistent resulting in discharge
        from at least three (3) service providers. Mother failed to attend
        any visits for approximately a month in June or July of 2016 at
        which time the child’s therapist recommended implementation of
        therapeutic visits due to the child’s stress response regarding
        inconsistent visits. Further, visit facilitators observed a lack of
        bonding between the parents and the child. Visits continued at a
        therapeutically supervised level.

        23. The parents have dated since June of 2012. Mother was
        married to another individual at that time[,] but later divorced.
        The parents married on December 22, 2016.

        24. Father’s pattern of substance abuse and related criminal
        activity did not improve after the birth of the child but, rather,
        deteriorated. At the evidentiary hearing, Father acknowledged
        he continues to struggle with the use of synthetic marijuana and
        alcohol relapsing as recently as March of 2017. Both parents
        acknowledged Father cannot care for the child at this time.
        Although Mother vocalized she would separate from Father if
        required to reunify with her child, Mother’s actions have
        demonstrated her intent to remain with Father despite his
        continued substance abuse and criminal activity.

        25. The child has been placed in a concurrent relative home since
        his initial removal in September of 2015. The child is bonded to
        the relatives and is doing well in their care. The child has
        participated in therapy throughout the CHINS case to address
        trauma symptoms. The child is readily adoptable.

        CONCLUSIONS OF LAW


Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 8 of 16
        1. There is no reasonable probability the conditions that resulted
        in removal of the child or the reasons for continued placement
        outside the home will be remedied. The parents have yet to
        demonstrate the ability or willingness to make lasting changes
        from past behaviors. Both parents failed to complete substance
        abuse treatment and relapsed several times during the case.
        Father relapsed and was arrested approximately two (2) weeks
        prior to the termination hearing. Despite Father’s continued
        substance abuse issues, Mother remains dedicated to the
        relationship with Father instead of reunification with the child.
        There is no reasonable probability that either parent will refrain
        from criminal behavior to provide adequately for the child’s well-
        being.

        2. Continuation of the parent-child relationships pose[s] a threat
        to the well-being of the child. The child needs stability in life.
        The child needs parents with whom the child can form a
        permanent and lasting bond and who will provide for the child’s
        emotional, psychological, and physical well-being. The child’s
        well-being would be threatened by keeping the child in parent-
        child relationships with either parent whose own choices and
        actions have made them unable to meet the basic needs of the
        child in a stable and permanent home.

        3. DCS has a satisfactory plan of adoption for the care and
        treatment of the child following termination of parental rights.
        The child can be adopted and there is reason to believe an
        appropriate permanent home has or can be found for the child
        with relatives.

        4. For the foregoing reasons, it is in the best interests of [Child]
        that the parental rights of [Mother] and [Father] be terminated.




Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 9 of 16
      Id. at 26-29. This appeal ensued.1


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

      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



      1
          Father does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 10 of 16
                      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). 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).


[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.



      Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 11 of 16
[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 Child’s removal and the reasons for his

      placement outside of Mother’s home will not be remedied; there is a reasonable

      probability that the continuation of the parent-child relationship poses a threat

      to the well-being of Child; and termination is in Child’s best interest. Because

      the statute is written in the disjunctive, we need not address the court’s

      conclusion that continuation of the parent-child relationship poses a threat to

      Child’s well-being. I.C. § 31-35-2-4(b)(2).


              Conditions that Resulted in Child’s Removal will not be Remedied

[9]   In determining whether the evidence supports the trial court’s finding that

      Mother is unlikely to remedy the reasons for Child’s removal, we engage in a

      two-step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636,

      643 (Ind. 2014). “First, we identify the conditions that led to removal; and
      Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 12 of 16
       second, we determine whether there is a reasonable probability that those

       conditions will not be remedied.” Id. (quotations and citations omitted). In the

       second step, the trial court must judge a parent’s fitness to care for his children

       at the time of the termination hearing, taking into consideration evidence of

       changed conditions. Id. However, the court must also “evaluate the parent’s

       habitual patterns of conduct to determine the probability of future neglect or

       deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d

       218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted). Pursuant to

       this rule, courts have properly considered evidence of a parent’s prior criminal

       history, drug and alcohol abuse, history of neglect, failure to provide support,

       and lack of adequate housing and employment. Id. Moreover, DCS is not

       required to rule out all possibilities of change; rather, it need establish only that

       there is a reasonable probability the parent’s behavior will not change. Id.


[10]   Mother does not challenge the trial court’s findings on this issue, and we cannot

       say that the trial court clearly erred when it concluded from those findings that

       the conditions that resulted in Child’s removal will not be remedied. Child was

       removed from Mother’s care due to Mother’s substance abuse. During the

       CHINS proceedings, while Mother completed a substance abuse assessment

       and submitted to drug screens, Mother: did not submit to all requested drug

       screens; admitted to having used spice in July and September 2016; spent one

       week in jail in September 2016 for spice use; missed three therapy appointments

       and was discharged from therapy for noncompliance in September 2016; left an

       inpatient treatment center against staff advice after only ten days of a twenty-


       Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 13 of 16
       one day program; and failed to repeat an outpatient treatment program, which

       had been recommended. In addition, while Mother enjoyed semi-supervised

       visits with Child for a period of time, Mother’s visits with Child were fully

       supervised beginning in May 2016. During the summer of 2016, Mother ceased

       visits with Child for a period of approximately one month, which led to her

       discharge from “at least three (3) service providers.” Appellant’s App. Vol. 2 at

       29.


[11]   Mother’s arguments on appeal simply seek to have this court disregard the

       evidence most favorable to the trial court’s judgment and instead reweigh the

       evidence in her favor, which we cannot do. The evidence supports the trial

       court’s finding that Mother has “yet to demonstrate the ability or willingness to

       make lasting changes from past behaviors.” Id. We cannot say that the trial

       court clearly erred when it concluded that the conditions that resulted in Child’s

       removal will not be remedied.


                                                  Best Interests

[12]   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
       Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 14 of 16
       important consideration in determining the best interests of a child.” In re A.K.,

       924 N.E.2d at 224.


[13]   Again, Mother does not challenge the trial court’s findings in support of this

       conclusion. Still, Mother contends that termination is not in Child’s best

       interests because “Mother improved her parenting skills, completed her drug

       treatment, passed her drug screens, was actively involved in the CHINS case,

       and had a bond with the Child.” Appellant’s Br. at 17. Mother also asserts that

       she was “clean and sober at the time of the evidentiary hearing on March 14,

       2017[,]” and she had a “stable and safe home that was suitable for the Child.”

       Id. Mother also asserts that, in light of Father’s relapse in March 2017, she

       would leave Father, to whom she is married, if that were required to maintain

       her parental rights over Child. Mother’s contentions on this issue amount to

       nothing more than a request that we reweigh the evidence, which, again, we

       cannot do.


[14]   DCS presented evidence that, while Mother showed progress early in the

       CHINS proceedings, she missed several visits with Child during the summer of

       2016, relapsed and used spice in July and September 2016, was arrested and

       spent one week in jail in September 2016, was discharged from three service

       providers, and left an inpatient treatment program against staff advice more

       than one week early. Child needs consistent and reliable care, and he needs

       permanency. As Samantha Goltz, the DCS family case worker, testified, it is in

       Child’s “best interest to be in a stable home free from drug and alcohol abuse

       and to be adopted and have permanency.” Tr. at 127. The totality of the

       Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 15 of 16
       evidence, including Mother’s historical inability to provide a safe and stable

       home and her failure to comply with services, supports the trial court’s

       conclusion that termination of Mother’s parental rights is in Child’s best

       interest.


[15]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017   Page 16 of 16
