MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
                                                                           Jul 31 2019, 11:37 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
Ana M. Quirk                                              Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General

                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          July 31, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of Al.K. (Minor                              19A-JT-249
Child)                                                    Appeal from the Delaware Circuit
and                                                       Court
                                                          The Honorable Kimberly Dowling,
A.K. (Mother),                                            Judge
Appellant-Respondent,                                     The Honorable Amanda Yonally,
                                                          Magistrate
        v.
                                                          Trial Court Cause No.
                                                          18C02-1801-JT-1
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019                           Page 1 of 12
      Crone, Judge.


                                                  Case Summary
[1]   A.K. (“Mother”) appeals the involuntary termination of her parental rights to

      her child Al.K. (“Child”). Her sole contention on appeal is that the trial court

      committed clear error in concluding that there is a reasonable probability that

      the conditions that resulted in Child’s removal or the reasons for placement

      outside the home will not be remedied. Finding no error, we affirm.


                                      Facts and Procedural History
[2]   The undisputed facts show that Child was born in August 2013.1 In April 2016,

      the Indiana Department of Child Services (“DCS”) removed Child from

      Mother’s care and filed a petition alleging Child was a child in need of services

      (“CHINS”).2 The CHINS petition alleged that Mother used illicit substances,

      including methamphetamine and amphetamine; her recent drug screen yielded

      positive results for methamphetamine and amphetamine; she had four previous

      DCS substantiations;3 and she was involved in one prior CHINS matter, which

      was closed in June 2012. Appellee’s App. Vol. 2 at 2. The trial court held a

      CHINS detention hearing and found that there was probable cause to believe




      1
          Mother has another older child who is not part of this case.
      2
         Child’s father is M.K. The trial court found that “[M.K.] has no relationship with [Child], has not visited
      [Child] or engaged in any services, and has expressed his desire to not have any contact or involvement with
      [Child] or the CHINS case.” Appealed Order at 7. The trial court terminated M.K.’s parental rights, but he
      is not participating in this appeal.
      3
          The petition does not give any details about Mother’s previous DCS substantiations.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019                       Page 2 of 12
      that Child was a CHINS based on Mother’s drug use and that detention was

      necessary to protect Child. Child was placed with her paternal grandparents. In

      September 2016, the trial court held a continued initial hearing and ordered

      Mother into provisional services, including random drug screens.


[3]   In November 2016, the trial court held a CHINS factfinding hearing and

      entered an order adjudicating Child a CHINS. In March 2017, the trial court

      held the dispositional hearing and subsequently entered a dispositional decree,

      in which it ordered Mother to participate in any programs recommended by the

      DCS family case manager (“FCM”); maintain suitable, safe, and stable

      housing; secure and maintain a legal and stable source of income; not use or

      consume illegal controlled substances; submit to random drug screens;

      complete a substance abuse assessment and follow all treatment

      recommendations; and attend all scheduled supervised visitation with Child,

      which could be changed to a hybrid visitation schedule of both supervised and

      unsupervised visitation at DCS’s discretion. Ex. at 22-24.


[4]   In October 2017, following a hearing, the trial court entered a permanency

      order finding that Mother had been inconsistent with visitation and

      noncompliant with reunification services and providing for concurrent

      permanency plans of adoption and reunification. Child remained with her

      paternal grandparents. On January 23, 2018, DCS filed a verified petition for

      involuntary termination of the parent-child relationship. On April 16, 2018, the

      trial court held a permanency hearing and issued an order changing Child’s

      permanency plan to adoption.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019   Page 3 of 12
[5]   On July 26, September 20, and October 4, 2018, the trial court held a

      factfinding hearing. On January 2, 2019, the trial court issued findings of fact,

      conclusions of law, and order terminating parent-child relationship

      (“Termination Order”), which contained findings, unchallenged by Mother,

      that establish the following facts. Mother failed to act on DCS’s initial referral

      for a substance abuse assessment. From June 2016 to June 2017, Jessie

      Wyman served as Mother and Child’s FCM. In FCM Wyman’s assessment,

      Mother’s issues were homelessness, substance abuse, and unemployment. In

      June 2016, Mother was evicted from her apartment. Mother stayed with her

      mother on occasion, but FCM Wyman was unaware of where Mother was

      residing most of the time. To help Mother obtain housing and employment,

      DCS provided two referrals for home-based casework service, which Mother

      refused to participate in. FCM Wyman provided Mother with a second referral

      for a substance abuse assessment, which Mother failed to act on. Mother failed

      to submit to twenty-three of the forty-three drug screens requested by FCM

      Wyman.


[6]   In June 2017, when Clark Tudor was assigned as FCM, Mother’s issues

      regarding unstable housing, substance abuse, and unemployment had not been

      resolved. FCM Tudor was not aware of a permanent address for Mother.

      FCM Tudor provided a third referral for a substance abuse assessment, which

      Mother completed. Mother completed intake services at Centerstone and was

      assigned a counselor, but was ultimately dismissed from Centerstone because

      she kept only one scheduled appointment with the counselor, failed to appear


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019   Page 4 of 12
      for three appointments, and cancelled one appointment. FCM Tudor then

      referred Mother to home-based casework services with Children’s Bureau.

      Mother met with her assigned counselor twice but was dismissed from the

      service due to her lack of engagement.


[7]   At the end of March 2018, FCM Tudor referred Mother to home-based

      casework services with Lifeline Youth and Family Services, and in April 2018,

      Mother began individual therapy with Katie Landherr. Mother was

      consistently engaged in therapy with her and made progress. Mother told

      Landherr that she had not been using any illicit substances and initially

      submitted to drug screens proved by Landherr. Later, Mother stopped agreeing

      to take drug screens offered by Landherr. On July 6 and August 8, 2018

      Mother tested positive for methamphetamine on DCS drug screens, and she

      refused to take a drug screen on July 26, 2018, the first setting of the factfinding

      hearing. Landherr was not informed of Mother’s positive drug screens with

      DCS. Overall, FCM Tudor obtained thirty-five drug screens from Mother;

      eleven were positive for methamphetamine. Mother failed to submit to twelve

      requested drug screens.4 Mother regularly “used methamphetamine throughout

      the CHINS case.” Appealed Order at 2.


[8]   Mother was employed at a McDonald’s in February and March of 2018. She

      obtained a full-time position at another McDonald’s in September 2018 and




      4
        At the termination hearing, Mother asserted her Fifth Amendment right not to incriminate herself and
      refused to answer whether she used methamphetamine. Tr. Vol. 2 at 115.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019                   Page 5 of 12
      had been employed there for three to four months. At the time of the

      termination hearing, Mother was living with her mother. Mother does not have

      a valid driver’s license and lacks transportation. Mother engaged in appropriate

      supervised visitation with Child, but her visitation never progressed to

      unsupervised visitation. Child has been with paternal grandparents since April

      2016, more than two and a half years, and is thriving.


[9]   The Termination Order also contains the following conclusions:


              94.      Although Mother has recently engaged in therapy and has
                       maintained employment, these conditions have been
                       recent within the past eight (8) months. Prior to April of
                       2018, Mother was minimally engaged in services to assist
                       her in remedying the circumstances that led to the removal
                       of [Child].


              95.      Mother also continues to use methamphetamine and has
                       not established stable and suitable housing for the child.


              ….


              97.      By clear and convincing evidence, the court determines
                       that there is a reasonable probability that the conditions
                       that resulted in [Child’s] removal and placement outside of
                       Mother’s home will not be remedied.


      Appealed Order at 6-7. The trial court also concluded that termination of the

      parent-child relationship was in Child’s best interests and that DCS had a

      satisfactory plan for Child’s care and treatment, which included adoption. Id.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019   Page 6 of 12
       at 7. Based on its conclusions, the trial court terminated Mother’s parental

       rights. This appeal ensued.


                                       Discussion and Decision
[10]   Mother seeks reversal of the termination of her parental rights. We note that

       “[a] parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” In re R.S., 56 N.E.3d

       625, 628 (Ind. 2016) (quoting Bester v. Lake Cty. Office of Family & Children, 839

       N.E.2d 143, 147 (Ind. 2005)). “[A]lthough parental rights are of a

       constitutional dimension, the law provides for the termination of these rights

       when the parents are unable or unwilling to meet their parental

       responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008).

       Involuntary termination of parental rights is the most extreme sanction, and

       therefore “termination is intended as a last resort, available only when all other

       reasonable efforts have failed.” Id. Because “the Fourteenth Amendment to

       the United States Constitution protects the traditional right of parents to

       establish a home and raise their children,” we apply a heightened standard of

       review to termination proceedings. In re V.A., 51 N.E.3d 1140, 1144 (Ind.

       2016) (quoting In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014)).


               In considering whether the termination of parental rights is
               appropriate, we do not reweigh the evidence or judge witness
               credibility. We consider only the evidence and any reasonable
               inferences therefrom that support the judgment, and give due
               regard to the trial court’s opportunity to judge the credibility of
               the witnesses firsthand. Where a trial court has entered findings
               of fact and conclusions of law, we will not set aside the trial
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019   Page 7 of 12
               court’s findings or judgment unless clearly erroneous. [Ind. Trial
               Rule 52(A)]. In evaluating whether the trial court’s decision to
               terminate parental rights is clearly erroneous, we review the trial
               court’s judgment to determine whether the evidence clearly and
               convincingly supports the findings and the findings clearly and
               convincingly support the judgment.


       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229-30 (Ind. 2013)

       (citations and quotation marks omitted). We note that Mother does not

       challenge any specific findings of fact, and therefore we accept the trial court’s

       findings of fact as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)

       (“Because Madlem does not challenge the findings of the trial court, they must

       be accepted as correct.”); McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct.

       App. 1997) (“Father does not challenge these findings and we accept them as

       true.”).


[11]   A petition to terminate a parent-child relationship involving a CHINS must,

       among other things, allege:


               (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.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019    Page 8 of 12
                        (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). DCS must also allege that termination is in the

       best interests of the child. Ind. Code § 31-35-2-4(b)(2)(C). DCS must prove

       each element by “clear and convincing evidence.” R.S., 56 N.E.3d at 628; Ind.

       Code § 31-37-14-2. If the trial court finds that the allegations in the petition are

       true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-

       2-8(a).


[12]   Mother challenges only the trial court’s conclusion that there is a reasonable

       probability that the conditions that resulted in Child’s removal or reasons for

       placement outside the home will not be remedied. See Ind. Code § 31-35-2-4

       (b)(2)(B)(i). In reviewing this determination, we engage in a two-step analysis.

       K.T.K., 989 N.E.2d at 1231. First, “we must ascertain what conditions led to

       [Child’s] placement and retention in foster care.” Id. Second, we “determine

       whether there is a reasonable probability that those conditions will not be

       remedied.” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010)). When

       the trial court makes its determination, it must evaluate a parent’s fitness at the

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

       conditions and balancing a parent’s recent improvements against “habitual

       pattern[s] 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)

       (quoting K.T.K., 989 N.E.2d at 1231). “A court may properly consider

       evidence of a parent’s prior criminal history, drug and alcohol abuse, history of

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019   Page 9 of 12
       neglect, failure to provide support, and lack of adequate housing and

       employment.” McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d

       185, 199 (Ind. Ct. App. 2003). The trial court may consider services offered by

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

       conditions will be remedied. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d

       1150, 1157 (Ind. Ct. App. 2013), trans. denied. “Where there are only temporary

       improvements and the pattern of conduct shows no overall progress, the court

       might reasonably find that under the circumstances, the problematic situation

       will not improve.” In re Involuntary Termination of Parent Child Relationship of

       A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). DCS “is not required to

       provide evidence ruling out all possibilities of change; rather, it need only

       establish ‘that there is a reasonable probability that the parent’s behavior will

       not change.’” A.D.S., 987 N.E.2d at 1157 (quoting In re Kay L., 867 N.E.2d

       236, 242 (Ind. Ct. App. 2007)).


[13]   Here, the reason for Child’s removal was Mother’s abuse of illegal drugs.

       Mother argues that she completed a substance abuse assessment, twenty-four of

       her thirty-five drug screens were negative, she followed the recommendation of

       home-based case services, her therapist testified that she was attending sessions

       and making progress, she was living with her mother, and she was employed.

       Appellant’s Br. at 22. According to Mother, these accomplishments addressed

       DCS’s concerns.


[14]   Mother ignores the findings in support of the judgment. The trial court found

       that although Child was removed from Mother in April 2016, Mother did not

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019   Page 10 of 12
       participate in services or substance abuse treatment at all, despite numerous

       referrals, until June 2017, when FCM Tudor took over the case. Even then,

       Mother’s referrals at two different service providers were ultimately dismissed

       due to Mother’s failure to participate and lack of engagement. It was not until

       April 2018 that Mother started to attend therapy sessions and make progress.

       This was just two months before the first setting of the termination factfinding

       hearing. Significantly, while Mother initially submitted to her therapist’s drug

       screens, she stopped doing so. Further, her therapist was not informed of

       Mother’s positive drugs screens with DCS. Although Mother agreed to take

       thirty-five drug screens offered by FCM Tudor, she tested positive for

       methamphetamine eleven times and refused twelve drug screens. Near the time

       of the first setting of the termination hearing, she tested positive for

       methamphetamine on July 6 and August 8, 2018, and refused a drug screen on

       July 26, 2018.5


[15]   In light of Mother’s historic pattern of failing to participate in services and avail

       herself of drug treatment opportunities, as well as her consistent drug use, the

       trial court could reasonably conclude that any progress made by Mother was

       temporary and that there was a reasonable probability that her drug abuse

       would not be remedied. See A.H., 832 N.E.2d at 570. Balancing a parent’s




       5
         We note that recently another panel of this Court held that exhibits containing drug test results do not fall
       under the business records exception to the rule against hearsay. Matter of L.S., 18A-JT-2881, 2019 WL
       2181225, at *4 (Ind. Ct. App. May 21, 2019). However, Mother did not object to the admission of the drug
       screen exhibits.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019                       Page 11 of 12
       recent improvements against habitual patterns of conduct is a delicate balance

       that is entrusted “to the trial court, which has discretion to weigh a parent’s

       prior history more heavily than efforts made only shortly before termination.”

       E.M., 4 N.E.3d at 643. Mother’s argument is merely an invitation to reweigh

       the evidence, which we must decline. Accordingly, we find no error in the trial

       court’s conclusion that there is a reasonable probability that the reasons for

       Child’s removal from Mother will not be remedied. We affirm the termination

       of Mother’s parental rights.


[16]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-249 | July 31, 2019   Page 12 of 12
