MEMORANDUM DECISION
                                                                Jul 31 2015, 9:57 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Michael R. Auger                                           Gregory F. Zoeller
Franklin, Indiana                                          Attorney General of Indiana

                                                           Robert J. Henke
                                                           Deputy Attorney General

                                                           David E. Corey
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 31, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of: O.Q., a Minor Child,                                  41A05-1412-JT-587
                                                          Appeal from the Johnson Circuit
L.Q.,                                                     Court

Appellant-Respondent,                                     The Honorable K. Mark Loyd,
                                                          Judge, and The Honorable Marla
        v.                                                Clark, Magistrate

                                                          Cause No. 41C01-1404-JT-13
Indiana Department of Child
Services,
Appellee-Petitioner.




Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 41A05-1412-JT-587 | July 31, 2015      Page 1 of 15
                                             Statement of the Case
[1]   L.Q. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor child O.Q. (“Child”). Mother raises a single issue for our review,

      namely, whether the trial court’s conclusion that there is a reasonable

      probability that the conditions which resulted in the removal of Child would

      not be remedied was clearly erroneous. We affirm.


                                      Facts and Procedural History
[2]   Mother gave birth to Child on December 14, 2012.1 In June 2013, Mother and

      Child were living in Franklin with N.A., with whom Mother had a romantic

      relationship. On June 23, Mother and N.A. “were arrested after law

      enforcement was called to the house for a domestic violence incident which

      occurred while [Mother] was holding the child.” Appellant’s App. at 2.


                 While at the home, law enforcement was shown a stash of
                 heroin, syringes, burnt spoons, a vial of a liquid substance, a
                 powder substance, and drug papers.

                 Both [Mother] and [N.A.] have ongoing substance abuse
                 problems and both have been responsible for the child’s care
                 while under the influence of illegal substances. Both are aware of
                 the other’s substance abuse problems.

                 [Mother and N.A.] were arrested on or about June 23, 2013[,]
                 and charged with preliminary charges of domestic battery, drug-
                 related offenses and neglect of a dependent.



      1
          Child’s father, T.D., does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 41A05-1412-JT-587 | July 31, 2015   Page 2 of 15
      Id. Also on June 23, the Indiana Department of Child Services (“DCS”)

      removed Child from Mother’s care. And on June 25, DCS filed a petition

      alleging that Child was a child in need of services (“CHINS”) because of

      Mother’s history of substance abuse and domestic violence.


[3]   At a hearing on the petition, Mother admitted that Child was a CHINS, and the

      trial court entered an order declaring Child a CHINS. And on July 30, the trial

      court ordered Mother to: maintain appropriate housing; not use controlled

      substances without a valid prescription; submit to random drug screens;

      complete a substance abuse evaluation; participate in home-based case

      management; not commit acts of domestic violence; and participate in domestic

      violence counseling. The trial court also ordered N.A. to participate in services.


[4]   On April 30, 2014, DCS filed a petition for the involuntary termination of

      Mother’s parental rights to Child. Following an evidentiary hearing on the

      petition on September 24, 2014, the trial court entered the following relevant

      findings and conclusions in support of terminating Mother’s parental rights:


              10. From July 201[3] to April 2014, Mother and [N.A.]
              remained together as a couple. DCS offered reunification
              services to each of them.

              11. In April 2014, Mother requested [N.A.] be removed from the
              case as Mother no longer desired to be in a relationship with her.

              12. By Order dated June 18, 2014, this Court issued an Order
              Modifying Dispositional Decree. This Order modified the
              court’s dispositional order of July 30, 2013, by removing [N.A.]


      Court of Appeals of Indiana | Memorandum Decision 41A05-1412-JT-587 | July 31, 2015   Page 3 of 15
        from the case and ordering Mother to have no further contact
        with [N.A.]

        13. This Court approved a change in permanency plan from
        reunification to a concurrent plan of adoption and reunification
        by order dated February 25, 2014.

        14. Mother was ordered to complete a number of dispositional
        goals under the CHINS cause. In summary, the goals are:

                 a. maintain appropriate, safe, stable housing;

                 b. provide proof of financial resources to maintain
                 the household;

                 c. allow a representative of CASA/DCS entry into
                 the home;

                 d. maintain contact with DCS; pay child support as
                 ordered by the Court;

                 e. not use, consume, or distribute any controlled
                 substances;

                 f. demonstrate the ability to meet the child’s needs;

                 g. execute all consents for release of information for
                 DCS/CASA to monitor progress in the matter;

                 h. participate in home-based case management,
                 completing the reasonable recommendations of the
                 service provider;

                 i. participate in parenting time as scheduled through
                 DCS;

                 j. not commit any acts of domestic violence;

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                 k. submit to random drug screens within a
                 reasonable time of the request;

                 l. submit to a substance abuse evaluation and follow
                 through with the reasonable recommendations of the
                 provider; and

                 m. participate in domestic violence counseling and
                 follow through with the reasonable recommendations
                 of the provider.

        15. In addition to the goals stated above, Mother was ordered to
        have no contact with [N.A.]

        16. Mother has failed to establish and maintain safe and stable
        housing for herself or the child. Mother lived with [N.A.] from
        June 2013 to approximately April 2014, when she ended her
        relationship with [N.A.]

        17. After leaving [N.A.] in April 2014, Mother lived with her
        grandmother for a couple of weeks before being asked to leave.
        From there, Mother lived with [a boyfriend named J.F.] in
        various hotels, and then in an apartment, until approximately
        one week before the hearing.

        18. At the time of the hearing, Mother reported living with her
        grandmother again. She admits she had only spent a few nights
        at her grandmother’s prior to the hearing and that she also stays
        with friends. Further, this is the same grandmother who
        requested that Mother leave the house after staying there a
        couple of weeks in April 2014.

        19. Mother has failed to provide proof of financial resources
        sufficient to maintain a household for herself and the child.
        Mother reported employment throughout the CHINS case,
        however, she did not provide proof of income to her home-based

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        provider when requested. While Mother has provided occasional
        pay-stubs to DCS, she has not provided proof of sufficient
        income to maintain a household to DCS or to this Court.

        20. Mother has used controlled substances throughout the
        CHINS case. She was ordered to participate in and complete
        substance abuse treatment. Mother was discharged from three
        different programs and failed to complete substance abuse
        treatment.

        21. Mother was initially referred to Take Back Control for
        substance abuse treatment and underwent an assessment there.
        She then requested another service provider and was referred to
        Adult and Child. After being referred to Adult and Child,
        Mother requested another referral to Take Back Control.

        22. Mother was unsuccessfully discharged from Take Back
        Control in January 2014, for continuing to have positive drug
        screens.

        23. Mother was then referred to Adult and Child. She was
        unsuccessfully discharged in July 2014, because she failed to take
        responsibility for having used drugs after provided positive drug
        screens.

        24. Mother’s substance abuse throughout the CHINS case has
        been significant based on the observations of service providers
        and the results of drug screens. She has had positive screens as
        recently as July 2014.

        25. Mother remains at high risk for additional substance abuse in
        that she has not completed a substance abuse treatment
        [program] and is apparently now in a relationship with an
        individual, [J.F.], who Mother admits uses drugs.




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        26. Mother did not consistently participate in home-based
        services and has not completed the recommendations of the
        service provider.

        27. Mother was referred to home-based services to work with
        Mother on housing, employment, and parenting skills. Mother
        met with the home-based provider fairly regularly; however,
        Mother did not progress in obtaining safe and stable housing for
        the child. The home-based provider also attempted to help keep
        Mother safe from repeated domestic violence with [J.F.] Mother
        failed to follow through with the provider’s suggestions to
        contact domestic violence shelters.

        28. Mother did obtain and maintain employment; however, she
        did not provide DCS, the home-based worker, or the Court with
        proof of her financial resources.

        29. Supervised parenting time was provided to Mother three
        days a week, for two hours each visit. Due to several missed
        appointments, Mother was required to contact the provider the
        day before the visit to confirm she would be participating in the
        visit. If Mother did not call the day before the visit, the visit
        would not occur. This plan was put in place because the service
        provider was transporting the child to the visit.

        30. Mother failed to attend a visit as recently as one week prior
        to the hearing on DCS’s Verified Petition to Terminate her
        Parental Rights. Mother missed approximately twenty-five
        percent (25%) of her parenting time opportunities during the
        CHINS case.

        31. Due to Mother’s lack of safe and stable housing throughout
        the CHINS matter, the parenting time occurred at Adult and
        Child. The parenting time was increased by one hour in July
        2014; however, Adult and Child could not recommend
        additional parenting time due to Mother’s lack of consistent
        participation.

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        32. Mother’s significant relationships during this case have both
        been marked by domestic violence. Mother was order[ed] to
        participate in domestic violence education and complete the
        reasonable recommendations of the provider.

        33. After being unsuccessfully discharged from two domestic
        violence programs, Mother completed domestic violence
        education through Adult and Child with Robin Brown. Ms.
        Brown counseled Mother on the cycles of domestic violence,
        how domestic violence impacts children, and how to break the
        cycle. Ms. Brown also offered Mother assistance should she find
        herself in a domestic violence situation.

        34. By Mother’s admission, her relationship with [N.A.] was
        marked with domestic violence. After being ordered to have no
        further contact with [N.A.], Mother petitioned for a protective
        order. However, the Order was dismissed when Mother did not
        appear at the hearing set on the petition.

        35. After leaving [N.A.], Mother began living with [J.F.] In July
        2014, after Mother had completed domestic violence education
        with Ms. Brown, Mother accused [J.F.] of raping and beating
        her. Shortly after this incident, Mother was found sharing a hotel
        room with [N.A.], in violation of the no contact Order entered in
        the CHINS case.

        36. Mother eventually moved back in with [J.F.] In September
        2014, approximately a week before the hearing, Mother again
        accused [J.F.] of hurting her.

        37. Mother did not contact Ms. Brown for assistance or
        counseling after the domestic violence incidents with [J.F.]
        Mother also failed to seek out assistance from domestic violence
        shelters as recommended by her home-based case worker.



Court of Appeals of Indiana | Memorandum Decision 41A05-1412-JT-587 | July 31, 2015   Page 8 of 15
        38. The child’s health and safety was at risk during the domestic
        violence incident leading up to the child’s detention. Despite
        having completed domestic violence education, Mother has not
        demonstrated she is able to avoid domestic violence in her
        significant relationships.

        39. The child was placed in the home of Mother’s grandmother
        when the child was detained. However, the child was moved to
        a licensed foster care home upon Mother’s request. It was
        discovered the grandmother was smoking around the child when
        the child’s doctors had requested she not be around cigarette
        smoke. This is the same home in which Mother now claims to
        be residing.

        40. When Mother began to live with [J.F.] in April 2014,
        Mother reported to FCM Montgomery that he would participate
        in services and take drug screens. [J.F.] refused to submit to a
        drug screen when requested by family case manager Corina
        Harmless in September 2014. [J.F.] did not participate in any
        services.

        41. The child has remained outside the home of the parents since
        her detention in June 2013.

        42. It would be in the child’s best interest for the parent-child
        relationship to be terminated as Mother had not made significant
        progress toward remedying the issues that led to her removal.

        43. DCS’s plan for the child’s continued care is adoption by her
        current foster parents.

                                      II. CONCLUSIONS

                                      ***
        2. The child has been removed from the parent for at least six (6)
        months under a dispositional decree.


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        3. The child has been removed from the parent and has been
        under the supervision of a county office of family and children or
        probation department for at least fifteen (15) months of the most
        recent twenty-two (22) months.

        4. There is a reasonable probability the conditions that resulted
        in the child’s removal or the reasons for placement outside the
        home of the parents will not be remedied.

                                                ***

        6. Mother has made little, if any, progress in completing her
        dispositional goals in over a year, despite several services having
        been provided to her. Mother has demonstrated a pattern of
        being involved in violent relationships. Mother’s failure to
        complete substance abuse treatment, in addition to her continued
        association with drug users, demonstrates Mother has not
        benefitted from the substance abuse treatment she did participate
        in.

        7. There is a reasonable probability the continuation of the
        parent-child relationship poses a threat to the well-being of the
        child. Mother has made little, if any, progress in addressing the
        reasons for the Court’s involvement with the family. Continuing
        the parent-child relationship under the circumstances poses the
        threat of harm to the child.

        8. Mother admitted that her substance abuse and history of being
        involved in domestic violence prevented her from effectively
        parenting [Child]. These circumstances have not changed in
        spite of Mother having assistance and opportunity to change
        them.

        9. Termination of Mother’s parental rights is [in] the best
        interests of the child. The child has been in foster care since she
        was six months old, and an adoptive family has already been
        identified. She needs permanency and stability. She should not

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              be forced to wait indefinitely for Mother to work toward
              reunification. Mother has demonstrated an inability to provide
              [Child] with a home that is free of violence and use of illegal
              substances, both of which are detrimental to her.

              10. There is a satisfactory plan for the care and treatment of the
              child, which is adoption.


      Appellant’s App. at 17-22 (citations omitted). This appeal ensued.


                                      Discussion and Decision
[5]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

      trans. denied. However, a trial court must subordinate the interests of the

      parents to those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750

      N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

      relationship is proper where a child’s emotional and physical development is

      threatened. Id. Although the right to raise one’s own child should not be

      terminated solely because there is a better home available for the child, parental

      rights may be terminated when a parent is unable or unwilling to meet his or

      her parental responsibilities. Id. at 836.


[6]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove, among other things:

      Court of Appeals of Indiana | Memorandum Decision 41A05-1412-JT-587 | July 31, 2015   Page 11 of 15
               (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) [and] that termination is in the best interests of the child . . . .


      Ind. Code § 31-35-2-4(b)(2).2 That statute provides that DCS need establish

      only one of the requirements of subsection (b)(2)(B) before the trial court may

      terminate parental rights. DCS’s “burden of proof in termination of parental

      rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child

      Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

      14-2).


[7]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

      Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

      denied. Instead, we consider only the evidence and reasonable inferences that




      2
        Indiana Code Section 31-35-2-4(b)(2)(B) also allows DCS to allege that “[t]he child has, on two (2) separate
      occasions, been adjudicated a child in need of services.” But that additional, alternative provision is not
      relevant here.

      Court of Appeals of Indiana | Memorandum Decision 41A05-1412-JT-587 | July 31, 2015             Page 12 of 15
      are most favorable to the judgment. Id. Moreover, in deference to the trial

      court’s unique position to assess the evidence, we will set aside the court’s

      judgment terminating a parent-child relationship only if it is clearly erroneous.

      Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999). trans. denied.


[8]   Here, in terminating Mother’s parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

      2005). First, we determine whether the evidence supports the findings and,

      second, we determine whether the findings support the judgment. Id.

      “Findings are clearly erroneous only when the record contains no facts to

      support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

      102 (Ind. 1996). If the evidence and inferences support the trial court’s

      decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[9]   Mother does not challenge the trial court’s findings of fact in its order

      terminating her parental rights. Rather, Mother challenges only the court’s

      legal conclusion that, on these facts, termination of her parental rights is

      justified because Mother will not remedy the conditions that resulted in Child’s

      removal. But, again, Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

      disjunctive, and the trial court concluded both that Mother will not remedy the

      conditions that resulted in Child’s removal and that the continuation of the

      parent-child relationship poses a threat to the well-being of Child. Because

      Court of Appeals of Indiana | Memorandum Decision 41A05-1412-JT-587 | July 31, 2015   Page 13 of 15
       Mother does not challenge the trial court’s conclusion under 31-35-2-

       4(b)(2)(B)(ii), that issue is waived.


[10]   Waiver notwithstanding, DCS presented sufficient evidence to support the

       termination of Mother’s parental rights, and the trial court’s conclusions are not

       clearly erroneous. A trial court need not wait until a child is irreversibly

       influenced by a deficient lifestyle such that his physical, mental, and social

       growth is permanently impaired before terminating the parent-child

       relationship. Shupperd v. Miami Cnty. Div. of Family & Children (In re E.S.), 762

       N.E.2d 1287, 1290 (Ind. Ct. App. 2002). When the evidence shows that the

       emotional and physical development of a child in need of services is threatened,

       termination of the parent-child relationship is appropriate. Id.


[11]   The undisputed evidence shows that Child was removed from Mother’s care

       only a few months after Child’s birth. During the CHINS proceedings, Mother

       did not maintain consistent contact with her family case manager; she has not

       maintained suitable or stable housing; she has continued to be involved in

       abusive personal relationships; she has not consistently visited with Child; she

       did not follow through on substance abuse treatment recommendations; and

       she failed several drug screens, including as recently as July 2014. Mother’s

       contentions on appeal amount to a request that we reweigh the evidence, which

       we will not do. Again, Mother does not challenge any of the trial court’s

       findings on appeal. And those findings support the trial court’s conclusions that

       there is a reasonable probability that the conditions that resulted in Child’s

       removal will not be remedied and that the continuation of the parent-child

       Court of Appeals of Indiana | Memorandum Decision 41A05-1412-JT-587 | July 31, 2015   Page 14 of 15
       relationship poses a threat to Child’s well-being. The findings also support the

       trial court’s conclusions that termination is in the best interests of Child and

       that there is a satisfactory plan for the care and treatment of Child. We hold

       that the trial court did not err when it terminated Mother’s parental rights to

       Child.


[12]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




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