MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                      Jan 15 2019, 9:04 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                         CLERK
                                                                       Indiana Supreme Court
purpose of establishing the defense of res judicata,                      Court of Appeals
collateral estoppel, or the law of the case.                                and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE INDIANA
Mark J. Wiley                                          DEPARTMENT OF CHILD SERVICES
Bowers, Brewer, Garrett &                              Curtis T. Hill, Jr.
Wiley, LLP                                             Attorney General of Indiana
Huntington, Indiana
                                                       David E. Corey
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           January 15, 2019
of the Parent–Child Relationship                           Court of Appeals Case No.
of: E.C. (Minor Child)                                     18A-JT-2166
and                                                        Appeal from the Huntington
                                                           Circuit Court
A.C. (Mother),
                                                           The Hon. Jamie M. Groves,
Appellant-Respondent,                                      Judge
                                                           Trial Court Cause No.
        v.                                                 35C01-1712-JT-17

The Indiana Department of Child
Services,
Appellee-Petitioner.



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019               Page 1 of 15
                                           Case Summary
[1]   On July 2, 2016, A.C. (“Child”) was born to E.C. (“Mother”) and A.V.

      (“Father”1) and tested positive for THC and methamphetamines. The Indiana

      Department of Child Services (“DCS”) at first offered Mother an informal

      adjustment, but Child was removed from her care after Mother failed a number

      of drug screens. In August of 2016, Child was adjudicated to be a child in need

      of services (“CHINS”). Over the course of approximately the next two years,

      Mother failed numerous drug screens and avoided several more, failed to

      complete any court-ordered reunification services, visited with Child only

      twice, and was in and out of jail. Mother is currently incarcerated in Ohio.

      Meanwhile, Child has been in the same foster placement since July of 2016 and

      has thrived. In December of 2017, DCS petitioned to terminate Mother’s

      parental rights in Child, and the juvenile court ordered Mother’s rights

      terminated in August of 2018. Mother contends that the juvenile court’s

      judgment is clearly erroneous. Because we disagree, we affirm.



                             Facts and Procedural History
[2]   On March 7, 2016, Mother was convicted of Class B misdemeanor marijuana

      possession and was sentenced to sixty days of incarceration to be followed by




      1
        Father’s paternity of Child was established on or about July 14, 2017, and he filed his consent to the
      adoption of Child on March 8, 2018, which the juvenile court accepted. Because Father does not participate
      in this appeal, we shall convey the facts only as they relate to Mother.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019               Page 2 of 15
      probation. When Child was born to Mother on July 2, 2016, Child tested

      positive for THC and amphetamines. On July 4, 2016, DCS Family Case

      Manager Rebecca Rankin (“FCM Rankin”) learned that Child had tested

      positive for illegal drugs and investigated. Mother admitted to FCM Rankin

      that she had smoked marijuana two days prior to Child’s birth but denied any

      amphetamine use. Mother also told FCM Rankin that she had ended her

      relationship with Father due to some “possible domestic violence that had been

      going on between the two of them.” Tr. Vol. III pp. 50–51. Child was allowed

      to leave with Mother, and they went to stay with a friend of Mother’s.


[3]   FCM Rankin eventually became aware that Mother was on probation at the

      time of Child’s birth and that she had “deep-rooted” and “serious substance

      abuse issues that, that most likely stemmed from trauma and grief.” Tr. Vol. III

      p. 53. Initially, Mother was offered substance-abuse treatment, individual

      counseling, random drug screens, and a medication evaluation as part of an

      informal adjustment. Mother failed three drug screens in the next few weeks

      (testing positive for methamphetamine, amphetamine, and THC), and, on July

      25, 2016, when Mother was incarcerated for violating the terms of her

      probation, DCS took custody of Child. On July 27, 2016, a detention hearing

      was conducted, after which Child was placed in foster care and DCS petitioned

      to have her declared a CHINS. The same day, Mother failed another drug

      screen and, over the next few weeks, broke several substance-abuse treatment

      appointments. On August 25, 2016, the juvenile court adjudicated Child to be

      a CHINS and issued a dispositional order, requiring Mother to (1) maintain


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 3 of 15
      good communication with FCM Rankin; (2) maintain safe and stable housing

      and stable income; (3) not use illegal substances or alcohol; (4) obey the law;

      and (5) comply with a number of other services, including substance-abuse

      assessment and treatment, drug screens, meeting all of Mother’s and Child’s

      health needs, and participation in visitation as ordered.


[4]   Mother tested positive for methamphetamine and amphetamine once in

      September of 2016, three times in October, once in November, once in

      December, and once in January of 2017. Mother also tested positive for THC

      in October of 2016. Following a review hearing on January 6, 2017, the

      juvenile court found that Mother was only partially in compliance with the case

      plan because she had failed to stay drug-free, had not regularly participated in

      services, had not enhanced her ability to fulfill her parental obligations, and had

      only recently had her one and only visitation with Child.


[5]   Mother tested positive for methamphetamine and/or amphetamine three more

      times in January of 2017, twice in February, once in April, once in May, and

      twice in June. Mother also tested positive for cocaine on June 30, 2017. The

      juvenile court held a permanency review hearing on August 2, 2017, after

      which it approved adoption as Child’s permanency plan and authorized DCS to

      petition to terminate Mother’s parental rights. The juvenile court found that

      Mother had failed several drug screens and had failed to submit to nineteen

      others, had failed to consistently participate in any of her court-ordered services,

      and had not regularly visited with Child.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 4 of 15
[6]   On December 7, 2017, DCS petitioned to terminate Mother’s parental rights in

      Child. On January 18, 2018, the juvenile court held a case-review hearing, after

      which it found that


              c. Mother has not complied with the Child’s case plan. Mother
                 is scheduled to drug screen at the DCS office on Mondays,
                 Wednesdays and Fridays unless otherwise exempted by the
                 FCM. For the months of June and July, Mother was
                 inconsistent in completing those drug screens. On June 1,
                 2017[,] Mother tested positive for methamphetamine and on
                 June 30, 2017, Mother tested positive for cocaine. Mother
                 entered the Worth Center in Ohio under court order out of a
                 criminal case in Shelby County, Ohio in September 2017 and
                 was released at the end of November 2017. Mother did not
                 make contact with DCS until January 5, 2018. On January
                 12, 2018, Mother drug screened and tested positive for
                 methamphetamine and amphetamine. Mother did schedule
                 appointments with the Bowen Center to begin Court-ordered
                 services but did not attend the appointments. Mother has
                 begun to participate in services after contacting DCS on
                 January 5, 2018.
              d. Mother has not visited with the child since February 8, 2017.
                 Mother has indicated that she wishes to begin visits and DCS
                 requests that any visits be therapeutic.
              e. Mother has not cooperated with DCS in that Mother has not
                 maintained contact with DCS or service providers.
              […]
              h. The cause of the Child’s out of home placement or
                 supervision has not been alleviated. Mother has not built a
                 relationship with the child. Mother has been in and out of jail
                 on drug related charges. Mother has not adequately
                 addressed the substance abuse issues that led to the removal
                 of the child.

      Appellant’s App. Vol. II p. 14.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 5 of 15
[7]   The juvenile court held a permanency hearing on August 2, 2018, during which

      the juvenile court heard evidence regarding Mother’s non-compliance with

      ordered services and legal troubles. As for noncompliance with ordered

      services, after Mother completed a substance assessment on October 17, 2016, it

      was recommended that she participate in individual therapy for substance-abuse

      treatment, parenting skills training, and mental-health counseling and continue

      with DCS recommendations. Mother’s attendance in therapy was “very

      poor[,]” Tr. Vol. III p. 117, participating in four sessions from December 2,

      2016, to January 16, 2017, three sessions from June 16 until July 19, 2017, and

      one session on January 19, 2018. Mother did not successfully complete any of

      her treatment goals. Mother was also referred to work with a life skills coach

      but did not participate. Mother admitted at the termination hearing that she

      had not completed any of DCS’s referred treatment programs.


[8]   Regarding visitation with Child, Mother, after her release from jail in 2016,

      failed to contact FCM Rankin to start visits with Child. Mother’s first visit with

      Child was in January of 2017 and her second (and last) was in February;

      Mother has not visited Child since. Visits went well the two times Mother did

      visit, but she was “just was not consistent at all.” Tr. Vol. III p. 67. Mother

      understood that in order to visit Child she had to pass her drug screens and

      attend counseling, which she did not do. Although Mother sometimes had

      consecutive clean drug screens, there were times when FCM Rankin could not

      locate Mother. Mother admitted that she did not get to visit “because [she]

      messed up and [she] started using.” Tr. Vol. III p. 38.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 6 of 15
[9]    As for Mother’s recent legal troubles, Mother was convicted in 2015 in Ohio of

       improper handling of a firearm in a motor vehicle, a 4th degree felony. In May

       of 2017, the Ohio court ordered that Mother serve five years on probation. On

       June 5, 2017, Mother tested positive for, and admitted to using,

       methamphetamine, resulting in the Ohio court ordering Mother to complete

       treatment at the Worth Center in Lima, Ohio. Mother started the program on

       August 3, 2017, and completed it on November 28, 2017. Mother admitted

       that this was “probably the best stretch in the last couple of years for [her].” Tr.

       Vol. III p. 28. Mother, however, also testified that after she completed the

       program, “[she] came home and it started all over.” Tr. Vol. III p. 28. Mother

       tested positive for methamphetamine on December 13, 2017.


[10]   By the time of the termination hearing, Mother was incarcerated at the Ohio

       Woman’s Reformatory prison. Mother had violated the terms of her probation

       by testing positive for methamphetamine in December of 2017 and failing to

       report to the probation department on January 22, 2018. Mother had also

       tested positive on April 30, 2018, for methamphetamine and amphetamine. On

       May 16, 2018, the Ohio court sentenced Mother to serve eighteen months in

       prison, and her release date is May 26, 2019. Although Mother has filed to

       have her sentence modified by a judicial release (which the Ohio criminal court

       has taken under advisement), she would still have to live in a half-way house

       and would remain on probation for another five years even if the release were

       granted.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 7 of 15
[11]   Meanwhile, in June of 2017, Indiana charged Mother with Class C

       misdemeanor operating a vehicle without financial responsibility. In or around

       February of 2018, Indiana charged Mother with three driving infractions. On

       February 21, 2018, Mother was charged with Class C misdemeanor resisting

       law enforcement. On February 26, 2018, Mother pled guilty to her outstanding

       charges and was sentenced on the traffic charges to sixty days, all suspended to

       time served, with 353 days on informal probation, and, for the resisting charge,

       365 days in jail with 345 days suspended to informal probation to be served

       consecutive to the traffic sentences.


[12]   FCM Raegan Graft, who took over the case from FCM Rankin in August of

       2017, testified that Mother “would appear for a while and then she’d disappear

       for a while. Um, she was in and out of jail constantly. Um, she would show up

       to services, but then no-show services, and it was just a constant cycle for her.”

       Tr. Vol. III p. 130. FCM Graft did not recommend returning Child to Mother’s

       care because Mother “hasn’t been able to show that she can provide herself

       with a stable and clean living environment, and, therefore, she wouldn’t be able

       to provide that for [Child] at this moment, either.” Tr. Vol. III p. 139. FCM

       Graft testified that termination was in Child’s best interests because Child had

       been out of Mother’s care for two years, Child only knows the foster family

       where she has been placed for two years as her family, and Mother “is a

       stranger” to Child. Tr. Vol. III p. 140.


[13]   Guardian ad Litem Kathryn Garrett (“GAL Garrett”) opined that termination

       was in Child’s best interests because Mother had not

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 8 of 15
               been able to rectify the situation that necessitated the removal.
               Um, there’s been an inconsistent, um, ability to stay out of jail, to
               provide a stable home and living environment for [Child]. Um,
               and beyond that, uh, because [Mother] hasn’t made progress in
               those areas, I don’t think that because she wouldn’t be able to
               provide a home soon, I think that [Child] deserves permanency.
               She’s been in her current foster placement for 2 years. Um, she’s
               very, very bonded with her foster family, um, and I believe that
               that’s appropriate.

       Tr. Vol. III pp. 147–48. GAL Garrett opined that termination and adoption by

       foster parents was in Child’s best interests.


[14]   Child’s foster mother Denise Jones testified that Child had been placed with

       her, her husband, and their four children when Child was twenty-one days old.

       Jones testified that Child was a “happy[,] bubbly, smiley, rotten little 2-year

       old.” Tr. Vol. III p. 125. According to FCM Rankin, Child exhibited slight

       signs of drug withdrawal at first and failed to meet some milestones. It was

       eventually determined that Child had difficulty hearing, an issue that was

       solved when tubes were put into her ears in mid-2017. At that point, Child’s

       “vocabulary took off from there and she’s been a chatty [C]athy ever since.”

       Tr. Vol. III p. 65. On August 29, 2018, the juvenile court ordered the

       termination of Mother’s parental rights in Child.


                                  Discussion and Decision
[15]   The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. Bester v.

       Lake Cty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further,

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 9 of 15
       we acknowledge that the parent–child relationship is “one of the most valued

       relationships of our culture.” Id. However, although parental rights are of a

       constitutional dimension, the law allows for the termination of those rights

       when parents are unable or unwilling to meet their responsibilities as parents.

       In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

       parental rights are not absolute and must be subordinated to the children’s

       interest in determining the appropriate disposition of a petition to terminate the

       parent–child relationship. Id.


[16]   In reviewing termination proceedings on appeal, this court will not reweigh the

       evidence or assess the credibility of the witnesses. In re Invol. Term. of Parental

       Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider

       the evidence that supports the juvenile court’s decision and reasonable

       inferences drawn therefrom. Id. Where, as here, the juvenile court includes

       findings of fact and conclusions thereon in its order terminating parental rights,

       our standard of review is two-tiered. Id. First, we must determine whether the

       evidence supports the findings, and, second, whether the findings support the

       legal conclusions. Id. In deference to the juvenile court’s unique position to

       assess the evidence, we set aside the juvenile court’s findings and judgment

       terminating a parent–child relationship only if they are clearly erroneous. Id. A

       finding of fact is clearly erroneous when there are no facts or inferences drawn

       therefrom to support it. Id. A judgment is clearly erroneous only if the legal

       conclusions made by the juvenile court are not supported by its findings of fact

       or the conclusions do not support the judgment. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 10 of 15
[17]   Indiana Code section 31-35-2-4(b) governs what DCS must allege and establish

       to support a termination of parental rights. Of relevance to this case, DCS was

       required to establish, by clear and convincing evidence,


               (A) that […] the following is true:
                      (i) The child has been removed from the parent for at least
                      six (6) months under a dispositional decree.
                      [….]
               (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.

       Ind. Code § 31-35-2-4(b)(2).


[18]   Mother concedes that Child was removed for at least six months pursuant to a

       dispositional decree and that DCS has a satisfactory plan for the care and

       treatment of Child. Mother contends, however, that DCS failed to establish

       that (1) there is a reasonable probability that the conditions that resulted in

       Child’s removal would not be remedied, (2) the continuation of the parent–

       child relationship poses a threat to the well-being of Child, (3) or termination is

       in the best interests of Child.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 11 of 15
                    I. Indiana Code Section 31-35-2-4(b)(2)(B)
[19]   Mother contends that the record does not establish that the reasons for Child’s

       continued removal would not be remedied or that the continued parent–child

       relationship posed a threat to Child. Because Indiana Code section 31-35-2-

       4(b)(2)(B) is written in the disjunctive, DCS need only establish one of these

       circumstances. See Ind. Code § 31-35-2-4(b)(2)(B) (providing that DCS must

       establish that one of the following is true: “[t]here 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[, t]here is a

       reasonable probability that the continuation of the parent–child relationship

       poses a threat to the well-being of the child[, or t]he child has, on two (2)

       separate occasions, been adjudicated a child in need of services”).


[20]   We choose to first address Mother’s contention that DCS has failed to establish

       a reasonable probability that the reasons for Child’s continued removal would

       not be remedied. In making such a determination, a juvenile court engages in a

       two-step inquiry. First, the juvenile court must “ascertain what conditions led

       to their placement and retention in foster care.” K.T.K. v. Ind. Dep’t of Child

       Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). After identifying these initial

       conditions, the juvenile court must determine whether a reasonable probability

       exists that the conditions justifying a child’s continued “placement outside the

       home will not be remedied.” In re D.D., 804 N.E.2d 258, 266 (Ind. Ct. App.

       2004) (citation omitted). The statute focuses not only on the initial reasons for

       removal “but also those bases resulting in continued placement outside the

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 12 of 15
       home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. DCS

       need not rule out all possibilities of change; rather, it must establish that there is

       a reasonable probability that the parent’s behavior will not change. In re B.J.,

       879 N.E.2d 7, 18–19 (Ind. Ct. App. 2008), trans. denied.


[21]   Here, Child was removed because of Mother’s substance abuse: Child was

       born with THC and methamphetamine in her system and was removed from

       Mother’s care three weeks later when Mother was incarcerated for violating the

       terms of her probation by using illegal drugs. As for whether the conditions are

       likely to be remedied, Mother has had over two years to address her substance-

       abuse issues, and, despite ready access to the resources needed to do so, has not

       done so. Over the course of DCS’s involvement in Child’s life, Mother has

       failed at least twenty-four drug screens, testing positive for methamphetamine,

       amphetamine, cocaine, and/or THC. Mother has also failed to submit to at

       least nineteen drug screens. After a four-month stint at a treatment facility in

       Ohio in 2017, Mother tested positive for methamphetamine again within three

       weeks of release. Mother last tested positive for methamphetamine on April 30,

       2018, and her Ohio probation was revoked approximately two weeks later.

       Even with her freedom and parental rights in Child at stake, Mother has been

       unable to stay clean. Given Mother’s consistent history of drug use, the record

       contains ample evidence to support a finding that there is a reasonable




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019   Page 13 of 15
       probability that the conditions that led to Child’s removal would not be

       remedied.2


                    II. Indiana Code Section 34-35-2-4(b)(2)(C)
[22]   Mother contends that insufficient evidence supports the juvenile court’s

       conclusion that termination is in Child’s best interests. We are mindful that in

       determining what is in the best interests of Child, the juvenile court is required

       to look beyond the factors identified by DCS and look to the totality of the

       evidence. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185,

       203 (Ind. Ct. App. 2003). In doing so, the juvenile court must subordinate the

       interests of the parents to those of the children involved. Id. Furthermore, this

       court has previously determined that the testimony of a GAL regarding a

       child’s need for permanency supports a finding that termination is in the child’s

       best interests. In the matter of Y.E.C., 534 N.E.2d 273, 276 (Ind. Ct. App. 1992).

       FCM Graft and GAL Garret both opined that termination and adoption by the

       Joneses was in Child’s best interests. While this testimony is likely sufficient to

       support the juvenile court’s conclusion to that effect, it is not as though these

       opinions are unsupported by the record. FCM Graft testified that Mother

       exhibited a pattern of sporadic compliance with services and was unable to stay

       out of trouble with the law or maintain stable and clean housing. FCM Graft

       also noted that Child had been out of Mother’s care for two years, only knows




       2
         We need not address Mother’s claim that the record will not support a finding that there is a reasonable
       probability that the continuation of the parent–child relationship poses a threat to the well-being of Child.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019                   Page 14 of 15
       the Joneses as her family, and does not have a relationship with Mother. GAL

       Garrett noted that Mother has not addressed her substance-abuse issues, been

       able to stay out of jail, or been able to provide Child with a stable environment.


[23]   Moreover, the record indicates that Child is thriving in her pre-adoptive

       placement with the Joneses, a situation that, at this point, is difficult to imagine

       occurring under Mother’s care. GAL Garrett testified that Child was “very,

       very bonded” with the Joneses. Child’s foster mother Denise testified that

       Child was a happy and “bubbly” two-year old. FCM Rankin testified that

       Child, formerly withdrawn and missing developmental milestones, had received

       treatment for her hearing issues and was now a “chatty Cathy” who was

       meeting her milestones. The record supports the juvenile court’s conclusion

       that termination is in Child’s best interests.3


[24]   The judgment of the juvenile court is affirmed.


       Bailey, J., and Brown, J., concur.




       3
         Mother argues that the juvenile court’s sole basis for terminating her parental rights was her incarceration.
       While it is true that the Indiana Supreme Court has held that “incarceration is an insufficient basis for
       terminating parental rights[,]” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 643 (Ind. 2015), Mother’s
       incarceration was by no means the sole—or even a significant—basis for the juvenile court’s judgment in this
       case. The juvenile court’s comprehensive fourteen-page order mentions Mother’s periods of incarceration, of
       course, but a fair reading of the order is that the termination is based almost entirely on Mother’s inability to
       achieve and maintain sobriety and her consistent failure to take advantage of the opportunities given to her.
       We conclude that K.E.’s holding has no applicability in this case.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2166 | January 15, 2019                   Page 15 of 15
