MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Dec 29 2017, 9:21 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     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
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of the Involuntary                      December 29, 2017
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of:                                         49A05-1707-JT-1498

K.M., H.M., K.M. (Minor Children),                       Appeal from the Marion Superior
                                                         Court
and
                                                         The Honorable Marilyn Moores,
H.J. (Mother),                                           Judge
Appellant-Respondent,                                    The Honorable Scott Stowers,
                                                         Magistrate
        v.
                                                         Trial Court Cause Nos.
The Indiana Department of Child                          49D09-1609-JT-1034
Services,                                                49D09-1609-JT-1035
                                                         49D09-1609-JT-1036
Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellee (Guardian ad Litem).

Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017       Page 1 of 14
      Robb, Judge.




                                  Case Summary and Issue
[1]   H.J. (“Mother”) appeals the juvenile court’s termination of her parental rights

      to her three children. Mother presents two issues for our review which we

      consolidate and restate as whether the juvenile court’s termination order is

      clearly erroneous. Concluding the termination order is not clearly erroneous,

      we affirm.



                              Facts and Procedural History
[2]   Mother and Ka.M. (“Father”)1 (collectively, “Parents”) have three children,

      five-year-old K.M., three-year-old H.M., and two-year-old Kh.M. (“Children”).

      On August 17, 2015—before Kh.M. was born—the Indiana Department of

      Child Services (“DCS”) filed a petition alleging K.M. and H.M. were children

      in need of services (“CHINS”) due to Parents’ history of drug use and the

      family’s lack of stable housing. DCS removed K.M. and H.M. from their

      Parents’ care and placed them with relatives. On September 4, 2015, Parents

      admitted that because of their substance abuse issues, K.M. and H.M. were




      1
       The juvenile court also terminated Father’s parental rights. Father, however, does not participate in this
      appeal.
      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017          Page 2 of 14
      CHINS and the court ordered continued placement in relative care. With the

      goal of reunification, the juvenile court ordered Parents to engage in a

      substance abuse assessment, home-based therapy, and random drug screens.

      The juvenile court authorized Parents to reside in the relative caregiver’s home

      after the completion of four consecutive, clean, non-diluted drug screens.


[3]   On December 4, 2015, the juvenile court conducted a periodic review hearing.

      There, DCS reported that Parents were participating in home-based therapy and

      their drug screens were negative. However, on December 10, DCS filed a

      petition alleging newborn Kh.M. was a CHINS after Kh.M. tested positive for

      codeine, heroin, and marijuana at birth. Following a fact-finding hearing on

      February 19, 2016, where Parents admitted Kh.M. was a CHINS, the juvenile

      court entered a parental participation order that required Parents engage in

      home-based therapy, random drug screens, and substance abuse treatment.

      Kh.M. was adjudicated a CHINS and placed in relative care.


[4]   The juvenile court conducted another periodic review hearing on March 4,

      2016. There, DCS expressed concern that Parents resided at the home of the

      relative caregiver and stated that Mother had not been calling in order to submit

      to drug screens. The juvenile court ordered Parents to remove their belongings

      from relative caregiver’s home.


[5]   By June 2016, K.M. and H.M. were in foster care while Kh.M. remained in

      relative care. At a hearing on June 10, DCS reported that Mother had tested

      positive on June 1 for opiates and methamphetamines and the court found

      Mother had actively prevented DCS from obtaining information about her
      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017   Page 3 of 14
      chosen services. The court ordered Mother to comply with services arranged by

      DCS rather than continue being able to arrange her own services. Parents

      failed to attend a permanency hearing on August 12. There, DCS reported

      Parents had not engaged in substance abuse treatment and requested the

      permanency plan for H.M. and K.M. change to adoption. The juvenile court

      reset the hearing for August 26, and ordered Parents to appear.


[6]   Parents again failed to appear on August 26. The Guardian Ad Litem agreed

      with DCS’ request to change the permanency plan to adoption. The juvenile

      court found that Parents had “struggled with heroin addiction since these

      matter[s] were filed.” Exhibits, Volume III at 12. The court also found that

      because Parents had not engaged in services to address these issues it was in the

      Children’s best interests for the plan to change from reunification to adoption.

      The juvenile court granted DCS’ motion to suspend visitation shortly thereafter.


[7]   On September 6, 2016, DCS filed petitions to terminate Parents’ parental rights

      to all three Children. On January 23, 2017, Mother was arrested and charged

      with possession of a syringe, a Level 6 felony. On May 6, 2017, Mother was

      arrested again and charged with possession of a narcotic drug, possession of

      methamphetamine, and possession of a syringe, all Level 6 felonies. Following

      an evidentiary hearing spanning the course of three days, the juvenile court

      terminated Parents’ parental rights on June 8, 2017. Mother now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017   Page 4 of 14
                                  Discussion and Decision
                                       I. Standard of Review
[8]    The right of parents to establish a home and raise their children is protected by

       the Fourteenth Amendment to the United States Constitution. In re D.D., 804

       N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied. However, the law provides

       for the termination of these constitutionally protected 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).


[9]    When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge the credibility of witnesses. In re D.D., 804 N.E.2d at 265.

       We only consider evidence, and reasonable inferences therefrom, most

       favorable to the judgment. Id. Furthermore, 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 when it is clearly erroneous. In re

       L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied, 534

       U.S. 1161 (2002).


[10]   Where, as here, the trial court enters findings of fact and conclusions thereon,

       we apply a two-tiered standard of review. Bester v. Lake Cty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). We must first determine whether

       the evidence supports the findings, then we determine whether the findings

       support the judgment. Id. Findings will be set aside only if they are clearly

       erroneous and findings are clearly erroneous only “when the record contains no

       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017   Page 5 of 14
       facts to support them either directly or by inference.” Yanoff v. Muncy, 688

       N.E.2d 1259, 1262 (Ind. 1997).


                                   II. Remedy of Conditions
[11]   Our supreme court has described the involuntary termination of parental rights

       as “an extreme measure that is designed to be used as a last resort when all

       other reasonable efforts have failed.” In re C.G., 954 N.E.2d 910, 916 (Ind.

       2011). In order for the State to terminate parental rights, Indiana Code section

       31-35-2-4(b)(2) provides the State must prove, in relevant part:


               (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.


       The foregoing elements must be proved by clear and convincing evidence. Ind.

       Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017   Page 6 of 14
[12]   On appeal, Mother argues that DCS failed to prove by clear and convincing

       evidence that the conditions that resulted in the Children’s removal will not be

       remedied. When considering whether the conditions that resulted in a child’s

       removal will be remedied, we engage in a two-step analysis: “First, we must

       ascertain what conditions led to [child’s] placement and retention in foster care.

       Second, we determine whether there is a reasonable probability that those

       conditions will not be remedied.” In re K.T.K., 989 N.E.2d 1225, 1231 (Ind.

       2013) (quotation omitted).


[13]   The juvenile court found:


               38. There is a reasonable probability that the conditions that
               resulted in the [C]hildren’s removal and continued placement
               outside of the home will not be remedied by their parents.
               [Parents] have had well over a year and a half to put forth an
               effort and address issues but have been unable to do so. Sobriety,
               housing, and stability remain major concerns. Both [Parents]
               have struggled with heroin addition [sic] since these matters were
               filed. Both parents have been arrested recently multiple times for
               drug charges. Neither parent have [sic] engaged in services to
               address these issues. Due to their continued usage, neither
               parent is in a position to parent at this time.


       Appealed Order at 3. Mother alleges that this case stems only from Parents’

       substance abuse issues, highlighting the juvenile court’s findings regarding the

       underlying CHINS cases:


               6. On September 4, 2015, [K.M. and H.M.] were adjudicated to
               be CHINS as to both [M]other and [F]ather when both parents
               admitted to an amended CHINS Petition. Specifically, Mother
               admitted that “[T]he children are in need of services because
       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017   Page 7 of 14
               [Mother] has substance abuse issues and the children and family
               would benefit from services offered through the Department of
               Child Services. The Intervention of the Court is necessary to
               ensure the child[ren]’s safety”. . . .


               ***


               8. On or about December 10, 2015, a CHINS Petition was filed
               on Kh.M. . . . after she was born positive for codeine, heroin, and
               marijuana; and that [Mother] used heroin regularly during her
               pregnancy.


       Appealed Order at 1-2.


[14]   Mother first argues that because the reason for Children’s removal was based

       “solely on substance abuse allegations, no other issues should have been

       considered by the juvenile court in making its finding on this statutory

       requirement.” Brief of Appellant at 10. Relying on language from our supreme

       court’s decision in In re I.A. that “the factors identified by the trial court as

       conditions that will not be remedied are relevant only if those conditions were

       factors in DCS’ decision to place [the child] in foster care in the first place[,]”

       934 N.E.2d 1127, 1134 (Ind. 2016), Mother contends the juvenile court’s

       finding number 38 is clearly erroneous for “mention[ing] other issues besides

       substance abuse.” Br. of Appellant at 11.


[15]   The juvenile court discusses Mother’s sobriety, multiple arrests “for drug

       charges,” housing, stability, and failure to engage in services for addiction

       treatment. Appealed Order at 3, ¶ 38. These issues—save housing—relate

       directly to the substance abuse issues alleged in the amended CHINS petition to
       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017   Page 8 of 14
       which Mother admitted and which the juvenile court found to be true. DCS

       alleged in its original CHINS petition that Mother “ha[d] failed to provide the

       children a safe and secure home free from substance abuse[,]” and that the

       “family is without stable housing[,]” Exhibits, Vol. III at 71, but Mother never

       admitted to these allegations. When considering the “factors in DCS’ decision”

       to remove a child from a parent’s care, our review of case law leads us to

       believe that only findings by the court regarding removal should be considered

       in subsequent termination proceedings. See In re V.A., 51 N.E.3d at 1148

       (noting where “the trial did not find that Father’s ‘little recognition if any of

       [Mother’s] mental illness’ was a factor in DCS’ decision to remove [child] from

       the home[,] we do not believe it to be an appropriate basis to support the

       conclusion DCS has met its heightened burden to show by clear and convincing

       evidence that termination is appropriate”). Given the weight of the court’s

       proper considerations, however, such a determination is ultimately

       unnecessary. Even assuming the consideration of Mother’s housing issues was

       error, we conclude that it did not render the court’s finding number 38 clearly

       erroneous.


[16]   Turning to Mother’s substantive argument, Mother contends that DCS did not

       present clear and convincing evidence that the substance abuse issues which led

       to the Children’s removal were still present at the time of the termination

       hearing. Specifically, Mother challenges the juvenile court’s finding that,


               Both Mother and Father consistently tested positive for drugs
               during the pendency of the CHINS case.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017   Page 9 of 14
       Appealed Order at 2, ¶ 23. Mother alleges the juvenile court’s finding is not

       supported by the record. Our review of the record reveals only one positive

       drug screen by Mother reported on June 1, 2016.2 We must disregard any

       special finding that is not proper or competent to be considered. In re B.J., 879

       N.E.2d 7, 19 (Ind. Ct. App. 2008), trans. denied. But, given the remaining

       evidence and the court’s accurate findings, we find such error harmless. See id.

       at 20 (affirming termination of parental rights despite erroneous finding based

       on testimony stricken from the record because the error did not “constitute the

       sole support for any conclusion of law necessary to sustain the judgment”);

       Matter of A.C.B., 598 N.E.2d 570, 573 (Ind. Ct. App. 1992) (affirming

       termination of parental rights despite erroneous findings because error was “not

       of such magnitude that it calls into question the court’s conclusion”).


[17]   Mother next argues there is not clear and convincing evidence that she refused

       to participate in drug treatment.3 Mother initially completed a substance abuse

       assessment which led to a recommendation for substance abuse treatment.

       However, Mother chose a treatment provider that was not referred by DCS and

       because she only completed a partial release, DCS’ ability to obtain information

       regarding her treatment was limited. In fact, following the June 10, 2016,

       periodic review hearing, the juvenile court found Mother had “actively




       2
        The record also includes evidence of Mother’s failure to call in order to submit to drug screens and tests
       unable to be completed “due to not producing enough urine.” Exhibits, Vol. III at 34-35.
       3
         The juvenile court’s conclusion regarding a reasonable probability that the conditions that resulted in the
       Children’s removal will not be remedied included, “Neither parent have [sic] engaged in services to address
       these issues.” Appealed Order at 3, ¶ 38.
       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017          Page 10 of 14
       prevented the DCS from obtaining information” regarding her chosen services.

       Exhibits, Vol. III at 25. There was also evidence that Mother failed to call in

       order to submit to drug screens and on other occasions was unable to produce a

       sufficient urine sample. So, while Mother contends she “was participating in

       drug treatment but in June 2016 the juvenile court ordered her to stop this

       treatment, forbid her from starting any new treatment and ordered her to wait

       for a referral from the DCS[,]” she neglects to mention her own actions

       prompting the juvenile court’s order. Br. of Appellant at 12,


[18]   After the June order, Mother contends she was “re-refer[red] to the Salvation

       Army” by Dapriel Benford, a Family Case Manager with DCS, and that the

       program first requires a detox program, “so the referral for detox came first and

       then a referral for substance abuse treatment was made in October 2016.” Br.

       of Appellant at 12. In support of her argument that there was no evidence she

       was refusing to participate in drug treatment, Mother cites the following

       finding:


               24. In July 2016, the DCS FCM made new referrals for the
               parents. Mother was referred for outpatient substance abuse
               treatment and [F]ather was referred to a detox program.


       Id. (citing Appealed Order at 3, ¶ 24). The juvenile court’s finding discusses

       Father’s referral to a detox program, not Mother’s. Mother also cites to a

       section of Benford’s testimony which only discusses DCS recommending

       Father to the Salvation Army. Id. (citing Transcript, Volume II at 173-75).

       Contrary to Mother’s contention, Benford testified that she provided Mother

       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017   Page 11 of 14
       with possible agencies for substance abuse treatment but Mother did not select

       an agency. Tr., Vol. II at 130-31 (“For [Father], it was detox . . . for [Mother],

       it was outpatient.”); and 148 (“[Mother] did not select any of the services that I

       offered for her.”). Therefore, we view Mother’s argument as nothing more than

       a request that we reweigh the evidence and we conclude the record adequately

       supports the court’s finding. See, e.g., In re D.D., 804 N.E.2d 258, 265 (Ind. Ct.

       App. 2004), trans. denied.


[19]   Mother also argues there was not clear and convincing evidence she was still

       using illegal drugs at the time of the termination hearing. Mother

       acknowledges that she admitted to drug use in the Summer of 2015, prior to the

       filing of the first CHINS petition regarding K.M. and H.M., but Mother

       maintains that even though Kh.M. was born in December 2015 testing positive

       for codeine, heroin, and marijuana, there was no evidence concerning when

       Mother would have had to ingest the drugs in order to cause a positive result—

       pointing to her negative drug tests reported on December 4. Mother also

       contests the juvenile court’s reliance on her two arrests in January and May

       2017, alleging other than the arrests and charges themselves, no evidence was

       presented regarding her drug use.


[20]   When evaluating a parent’s fitness at the time of the termination proceedings, a

       juvenile court must take into consideration evidence of changed conditions and

       balance any recent improvements against habitual patterns of conduct to

       determine whether there is a substantial probability of future neglect or

       deprivation. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). This habitual conduct

       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017   Page 12 of 14
may include a parent’s prior criminal history, drug and alcohol abuse, history of

neglect, failure to provide support, and a lack of adequate housing and

employment. A.D.S., v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind.

Ct. App. 2013), trans. denied. The court may also consider services offered to

the parent by DCS and the parent’s response to those services as evidence of

whether conditions will be remedied. Id.


Here, we find the record adequately supports the juvenile court’s conclusion

that the conditions which led to the Children’s removal—namely Mother’s

substance abuse—will not be remedied.4 There is little evidence of changed

conditions or recent improvements and Mother’s habitual patterns of conduct

far outweigh any such evidence. See In re A.H., 832 N.E.2d 563, 570 (Ind. Ct.

App. 2005) (noting where a parent’s “pattern of conduct shows no overall

progress, the court might reasonably find that under the circumstances, the

problematic situation will not improve”). Mother’s history of substance abuse

combined with her inability to refrain from criminal activity, effectively

participate in services, or take positive steps to improve her circumstances all

demonstrate this fact. See, e.g., In re L.S., 717 N.E.2d at 210 (noting a parent’s

unwillingness to remedy problems and to cooperate with social services, along




4
  Mother also argues the juvenile court erred in finding her continued custody poses a threat to the Children’s
well-being. Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires only one
element be proven to terminate Mother’s parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App.
2009); In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), trans. denied, cert. denied, 543 U.S. 1161 (2002).
Having concluded the evidence is sufficient to show a reasonable probability the conditions resulting in the
Children’s removal will not be remedied, we need not address Mother’s argument.


Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017         Page 13 of 14
       with unchanged conditions, supports a finding there is a reasonable probability

       conditions will not change). Accordingly, we conclude the juvenile court’s

       termination order was not clearly erroneous.



                                               Conclusion
[21]   Concluding the juvenile court’s decision to terminate Mother’s parental rights

       was not clearly erroneous, we affirm.


[22]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-JT-1498 | December 29, 2017   Page 14 of 14
