MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                       Feb 17 2017, 8:02 am

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
Steven Knecht                                             Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                                Attorney General of Indiana
Lafayette, Indiana                                        Robert J. Henke
                                                          Marjorie Newell
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              February 17, 2017
Parent-Child Relationship of                              Court of Appeals Case No.
M.L. and A.L. (Minor                                      91A02-1607-JT-1758
Children),                                                Appeal from the White Circuit
and                                                       Court
                                                          The Honorable Robert W.
A.H. (Mother)                                             Thacker, Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          91C01-1510-JT-14
        v.                                                91C01-1510-JT-15

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 1 of 14
      Mathias, Judge.


[1]   A.H. (“Mother”) appeals the judgment of the White Circuit Court terminating

      Mother’s parental rights to her daughter M.L. (“Daughter”) and her son A.L.

      (“Son”). On appeal, Mother claims that the evidence was insufficient to support

      the trial court’s decision to terminate her parental rights.

[2]   We affirm.


                                     Facts and Procedural History

[3]   Mother and A.L. (“Father”) were in a romantic relationship and had two

      children, Daughter, who was born in October 2008, and Son, who was born in

      March 2014. Due to the parents’ use of methamphetamine, Daughter has been

      removed from their care twice before this case began: the first time in 2009 and

      again in 2010. Both of these removals resulted in Daughter being determined to

      be a child in need of services (“CHINS”). As a result of the 2010 case, Mother

      was convicted of neglect of a dependent and possession of methamphetamine.

      Mother appears to have temporarily stopped using methamphetamine after

      being treated at the Lighthouse Rehabilitation Center in Washington, Indiana,

      and neither of these prior CHINS cases resulted in the termination of either

      parents’ parental rights. However, Mother soon relapsed.

[4]   Between May 2012 and May 2013, Mother bought pseudoephedrine twenty-

      one times. On two other occasions, she attempted to purchase pseudoephedrine

      but was unsuccessful. Mother’s family members were concerned that she was

      using and manufacturing methamphetamine. In May 2014, DCS received a

      Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 2 of 14
      report that Mother and Father were manufacturing methamphetamine and

      using it regularly. When DCS investigated, Mother and Father denied using but

      refused to be tested for drug use. They did agree to have Daughter and Son

      tested, however. The children underwent hair follicle testing on June 4, 2014.

      The tests came back as positive for methamphetamine. Accordingly, DCS

      removed the children from the parents’ care on June 10, 2014. Mother

      eventually admitted to using methamphetamine but claimed not to have done

      so in the presence of the children, a claim apparently contradicted by the results

      of the drug tests.


[5]   On August 14, 2014, Daughter and Son were both determined by the trial court

      to be in need of services. The children were placed with Mother’s cousin for one

      day but were put in non-relative foster care when DCS became aware that

      Mother’s cousin’s husband was also purchasing large amounts of

      pseudoephedrine. Later that month, the children were placed with their

      paternal grandparents, where they have remained since.

[6]   On September 5, 2014, the trial court entered a dispositional order requiring

      Mother to participate in the offered services, follow DCS’s recommendations,

      complete a substance abuse assessment and follow all the recommendations

      after the assessment, refrain from using and manufacturing illicit substances,

      submit to random drug screenings, maintain a legal and stable source of

      income, and maintain safe, stable, and suitable housing. The long-term goal

      was at this point reunification of the children with the parents.



      Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 3 of 14
[7]   Mother did undergo a substance abuse assessment, and it was recommended

      that she participate in intensive outpatient therapy (“IOP”). Despite several

      attempts by DCS to get Mother to participate in IOP, she failed to complete the

      program. Mother’s cooperation with drug testing was similarly poor. From

      September 12, 2014 to June 29, 2015, Mother either refused to take or failed to

      show for twenty-two of the forty-four scheduled drug screens. Although Mother

      maintained a brief period of sobriety from November 2014 to March 2015,

      Mother consistently tested positive for methamphetamine use from March 2015

      until November 2015. Mother also refused to submit to any drug screen since

      November 2015. This is consistent with Mother’s history of methamphetamine

      use, which dates back to at least 2006.


[8]   As found by the trial court, Mother was incarcerated multiple times during the

      course of the CHINS case. During 2015, she was arrested twice for theft and

      once for possession of methamphetamine. At the time of the termination

      hearing, Mother was serving ten weekends in the Gibson County jail as part of

      her most recent conviction for theft, and she was awaiting sentence in her most

      recent conviction for possession of methamphetamine, which would most likely

      result in further incarceration.


[9]   Mother also struggled to maintain steady housing and employment. She was

      homeless for a period of time and moved multiple times during the pendency of

      the CHINS case. Although Mother claimed to have various jobs through a

      temporary agency, except for one time, she refused to provide DCS with proof

      of her employment.

      Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 4 of 14
[10]   Mother did consistently participate in visitation with Daughter and Son, but she

       was consistently late, as well. Mother’s tardiness resulted in the children being

       distressed. The visitations were fully supervised at the offices of Ireland Home

       Based Services (“Ireland”), but in March 2015, the visitations were moved to

       Mother’s home and were only partially supervised. However, Mother then

       refused to submit to a drug test, causing DCS to obtain a court order requiring

       Mother to submit to a test. When she did, the test came back positive for

       methamphetamine, and the visitations were again returned to Ireland and were

       fully supervised. The children initially wanted to visit with Mother and

       interacted with her in a positive way, but they have recently become more

       withdrawn during visits and expressed a desire not to go.


[11]   On June 15, 2015, DCS requested that the permanency plan be changed from

       reunification to adoption. The trial court denied this request in an effort to give

       Mother “one more opportunity to turn her life around for her children.”

       Appellant’s App. pp. 45, 64. Mother, however, continued to test positive for

       methamphetamine.


[12]   Accordingly, on September 18, 2015, DCS again petitioned the trial court to

       change the permanency plan from reunification to adoption. This time, the trial

       court granted DCS’s request and set a review hearing to be held on December

       9, 2015. On October 29, 2015, DCS filed a petition to terminate Mother’s

       parental rights. Despite having notice of the December 9 review hearing,

       Mother failed to appear.



       Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 5 of 14
[13]   Before the final evidentiary hearing on the termination petition, Father

       voluntarily terminated his parental rights. The trial court held an evidentiary

       hearing regarding the termination of Mother’s parental rights on April 4, 2016.

       At the conclusion of the hearing, the trial court took the matter under

       advisement and, on May 23, 2016, entered findings of fact and conclusion of

       law granting DCS’s petition and terminating Mother’s parental rights to

       Daughter and Son. Mother now appeals.


                                    Termination of Parental Rights

[14]   The purpose of terminating parental rights is not to punish parents but instead

       to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

       Although parental rights have a constitutional dimension, the law allows for

       their termination when the parties are unable or unwilling to meet their

       responsibilities as parents. Id. Indeed, parental interests must be subordinated to

       the child’s interests in determining the proper disposition of a petition to

       terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).


[15]   Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate

       parental rights must 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.




       Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 6 of 14
                          (ii) There is a reasonable probability that the
                          continuation of the parent-child relationship poses a
                          threat to the well-being of the child.
                          (iii) The child has, on two (2) separate occasions, been
                          adjudicated a child in need of services;
                    (C) 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.

[16]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; G.Y., 904 N.E.2d at 1261. But because Indiana Code section 31-35-

       2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find that

       only one prong of subsection (b)(2)(B) has been established by clear and

       convincing evidence. In re A.K., 924 N.E.3d 212, 220 (Ind. Ct. App. 2010).


[17]   Clear and convincing evidence need not establish that the continued custody of

       the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cnty.

       Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). It is instead

       sufficient to show by clear and convincing evidence that the child’s emotional

       and physical development are put at risk by the parent’s custody. Id. If the court

       finds the allegations in a petition are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a).

[18]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility. Id. We

       consider only the evidence and reasonable inferences favorable to the trial


       Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 7 of 14
       court’s judgment. Id. In deference to the trial court’s unique position to assess

       the evidence, we will set aside a judgment terminating a parent-child

       relationship only if it is clearly erroneous. Id. Clear error is that which leaves us

       with a definite and firm conviction that a mistake has been made. J.M. v. Marion

       Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.

       denied.


                      I. Conditions that Resulted in Children’s Removal

[19]   Mother first contends that the trial court clearly erred in concluding that there

       was a reasonable probability that the conditions that resulted in the children’s

       removal or the reasons for their placement outside Mother’s home would not be

       remedied. Mother’s argument has little merit.

[20]   When deciding whether there is a reasonable probability that the conditions

       resulting in a child’s removal or continued placement outside of a parent’s care

       will not be remedied, the trial court must determine a parent’s fitness to care for

       the child at the time of the termination hearing while also taking into

       consideration evidence of changed circumstances. A.D.S. v. Ind. Dep’t of Child

       Servs., 987 N.E.2d 1150, 1156-57 (Ind. Ct. App. 2013). However, the trial court

       may disregard efforts made only shortly before termination and weigh more

       heavily a parent’s history of conduct prior to those efforts. In re K.T.K., 989

       N.E.2d 1225, 1234 (Ind. 2013). The termination statute does not simply focus

       on the initial reason for a child’s removal in determining whether a parent’s

       rights should be terminated, but also those reasons resulting in the continued


       Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 8 of 14
       placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App.

       2013).

[21]   Here, the reason for the children’s removal from Mother and their continued

       placement outside of her home was Mother’s obvious addiction to and repeated

       use of methamphetamine. Mother refers us to evidence before the trial court

       that indicated she had recently began to make progress to combat her substance

       abuse problem. Specifically, she notes that there was evidence that she ended

       her relationship with Father, recently started to attend N.A. meetings and

       intensive outpatient therapy, and had not recently tested positive for illicit drug

       use.


[22]   All of this evidence was before the trial court, and Mother’s argument is little

       more than a request that we consider evidence not favorable to the trial court’s

       decision, reweigh this evidence, and come to a conclusion different than that

       reached by the trial court. This, of course, is not our role as an appellate court.

       See In re D.B., 942 N.E.2d at 871. Furthermore, as noted by DCS, these changes

       in Mother’s behavior came only after Mother’s most recent arrest and shortly

       before the termination hearing. Thus, the trial court was well within its

       discretion to disregard efforts made only shortly before termination and weigh

       more heavily a parent’s history of conduct prior to those efforts. In re K.T.K.,

       989 N.E.2d at 1234. Mother has a long history of methamphetamine abuse and

       criminal activity and convictions associated with this methamphetamine use.

       Mother has also been involved with two prior CHINS cases regarding

       Daughter, and these CHINS cases were also based on Mother’s use of

       Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 9 of 14
       methamphetamine. Indeed, Mother was even convicted of neglect of Daughter

       based on her use of methamphetamine. Mother has repeatedly participated in

       substance abuse treatment, only to fail or relapse.


[23]   Under these facts and circumstances, the trial court did not clearly err by

       concluding that there was a reasonable probability that the conditions that

       resulted in the children’s removal or the reasons for their placement outside

       Mother’s home would not be remedied. See In re A.S., 17 N.E.3d 994, 1005

       (Ind. Ct. App. 2014) (concluding that evidence supported trial court’s finding

       that the conditions that led to children’s removal, specifically parents’ substance

       abuse, would not be remedied, where mother’s substance abuse worsened when

       children were returned to her for a trial home visit, and mother failed to

       participate in substance abuse treatment), trans. denied.


                         II. Continuation of Parent-Child Relationship

[24]   Mother also argues that the trial court clearly erred in determining that there

       was a reasonable probability that the continuation of the parent-child

       relationship poses a threat to the well-being of the children. We first observe

       that Section 4(b)(2)(B) is written in the disjunctive; accordingly, the trial court is

       required to find that only one prong of Indiana Code section 31-35-2-4(b)(2)(B)

       has been established. In re A.K., 924 N.E.2d at 220. Because we conclude that

       DCS proved that there was a reasonable probability that the conditions which

       resulted in the children’s removal from Mother’s care would not be remedied,

       we need not address Mother’s arguments directed at the “threat” prong of

       Section 4(b)(2)(B). See In re A.K., 925 N.E.2d at 220.
       Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 10 of 14
[25]   Even if we address the “threat” prong of Section 4(b)(2)(B), however, Mother

       does not prevail. In addressing the threat prong of section 4(b)(2)(B), the trial

       court must consider the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of the child. A.D.S., 987 N.E.2d at

       1157. The trial court may consider evidence of a parent’s prior history of

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

       employment. Id. DCS is not required to provide evidence ruling out all

       possibilities of change. Id. Instead it needs to establish only that a “reasonable

       probability” exists that the parent’s behavior will not change. Id.


[26]   Mother’s habitual patterns of conduct show that Mother has been addicted to

       methamphetamine for years and used methamphetamine throughout the vast

       majority of the underlying CHINS case. Even though the trial court gave

       Mother extra time to demonstrate that she could change her behavior, she

       continued to test positive for use of methamphetamine. As a result of her

       methamphetamine addiction, Mother has been unable to maintain steady

       employment or stable housing, and she has been arrested and incarcerated for

       both theft and possession. The children had been removed from Mother’s care

       since June 2014, and between then and the April 2016 termination hearing,

       Mother had made precious little improvement. She had yet to complete any of

       the drug treatment, had tested positive for methamphetamine as recently as

       November 2015, and had refused any drug tests thereafter.


[27]   Mother is correct to note that there was no indication that she physically abused

       the children. However, a finding of physical abuse is not required before a trial

       Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 11 of 14
       court may determine that the continuation of the parent-child relationship poses

       a threat to a child’s well-being. See In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App.

       2005) (“Although there was no specific testimony that either parent had

       physically abused A.I., there can be little doubt that the parties’ serious

       substance abuse addictions detrimentally affected or greatly endangered her.”).


[28]   Given Mother’s drug addiction, her resulting failure to demonstrate an ability to

       adequately care for the children, and her lack of progress throughout the history

       of this case, the trial court could readily conclude that there was a reasonable

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

       to the well-being of the children.


                       III. Termination in Best Interests of the Children

[29]   Lastly, Mother argues that the trial court erred in concluding that termination

       of the parent-child relationship was in the best interests of the children. In

       determining what is in the best interests of the child, the trial court must look

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

       A.D.S., 987 N.E.2d at 1158. The trial court must subordinate the interests of the

       parent to those of the child, and the court need not wait until the child are

       irreversibly harmed before terminating the parent-child relationship. Id. A

       recommendation by the case manager or child advocate to terminate parental

       rights, in addition to evidence that the conditions resulting in removal will not

       be remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id.


       Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 12 of 14
[30]   Here, the trial court concluded that “[b]ased on Mother’s lack of progress and

       her refusal or inability to improve her capacity to provide proper care and

       nurturing for the child, adoption and termination of parental rights is in the

       child’s best interests.” Appellant’s App. pp. 48, 67. Ample evidence supports

       this conclusion.


[31]   Mother’s continued drug use and her inability to maintain any progress in her

       treatment clearly demonstrate that Mother was still in no condition to regain

       custody of her children. Nor was the trial court required to, yet one more time,

       wait and see if Mother would progress if given more time. The children had

       been in out of Mother’s custody for almost two years at the time of the

       termination hearing. The children were doing well in foster care with their

       paternal grandparents, who desired to adopt the children. The family case

       manager testified that it was in the children’s best interests to remain with the

       grandparents. The guardian ad litem testified similarly.


[32]   Mother complains that, if the paternal grandparents adopt Daughter and Son,

       then she will be cut off from her children, but Father, who voluntarily

       terminated his parental rights, will likely continue to have a relationship with

       the children. However, as noted by the trial court, whether adoption by the

       paternal grandparents is in the children’s best interests is a question for the

       adoption court, not the termination court. See I.C § 31-19-11-1 (requiring

       adoption court to find that adoption is in the best interests of the child before

       granting a petition for adoption); I.C. § 31-19-10-6 (requiring adoption court to

       dismiss petition for adoption if it is established that it is in the best interests of

       Court of Appeals of Indiana | Memorandum Decision 91A02-1607-JT-1758 | February 17, 2017   Page 13 of 14
       the child that a motion to contest an adoption be granted). Even if Father has

       some contact with his children, his rights as a parent have been terminated, as

       have Mother’s.


[33]   In short, the evidence supports the trial court’s conclusion that termination of

       the parent-child relationship was in the best interests of the children.


                                                   Conclusion

[34]   DCS presented sufficient evidence to support the trial court’s conclusion that

       there was a reasonable probability that the conditions that resulted in the

       children’s removal from Mother’s care would not be remedied and that the

       continuation of the parent-child relationship posed a threat to the children’s

       well-being. The evidence was also sufficient to support the trial court’s

       conclusion that termination of the parent-child relationship was in the

       children’s best interests. Accordingly, we affirm the judgment of the trial court

       terminating Mother’s parental rights to Daughter and Son.

[35]   Affirmed.


       Baker, J., and Pyle, J., concur.




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