MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Sep 03 2019, 8:52 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          September 3, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of J.L. (Minor                               19A-JT-655
Child)                                                    Appeal from the Clay Circuit
      and                                                 Court
                                                          The Honorable Joseph Trout,
T.L. (Mother),                                            Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          11C01-1803-JT-87
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019                Page 1 of 11
                                           Case Summary
[1]   T.L. (“Mother”) appeals the termination of her parental rights to J.L. (“Child”),

      upon the petition of the Vigo County Department of Child Services (“the

      DCS”). We affirm.



                                                     Issue
[2]   Mother presents a single issue for review: Whether the DCS established, by

      clear and convincing evidence, the requisite statutory elements to support the

      termination decision.



                              Facts and Procedural History
[3]   In May of 2016, Mother, then pregnant with her third child, called police to

      report that her boyfriend had battered her. He allegedly retaliated by reporting

      to the DCS that Mother was mentally unstable. In June of 2016, the DCS

      entered into an informal adjustment with Mother, who agreed to submit to

      random drug screens and complete a drug assessment. Mother then relocated

      with her children to her mother’s residence in Clay County and the Clay

      County DCS (“Clay DCS”) began supervising the case.


[4]   Mother did not complete her drug assessment but submitted to drug screens.

      On two occasions in July of 2016, Mother’s drug screens yielded positive results

      for methamphetamine. In August of 2016, Mother gave birth and both she and

      her newborn child tested positive for methamphetamine. Clay DCS removed


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019   Page 2 of 11
      all three children and placed them in foster care. The eldest and youngest were

      later placed with their respective fathers; J.L. remained in foster care. Mother

      admitted that J.L. was a Child in Need of Services (“CHINS”). Mother was

      ordered to, among other things, complete psychological assessments, maintain

      suitable housing and employment, refrain from using illegal substances, take all

      mental health medications as directed, attend child visitation sessions, and

      successfully complete substance abuse treatment recommendations.


[5]   In February of 2017, Mother was jailed for punching her eldest child’s father

      during a supervised visitation session. Her visitation was suspended, but was

      restored after she demonstrated partial compliance with reunification services.

      However, Mother articulated threats against a caseworker, the Court Appointed

      Special Advocate (“CASA”), and one or more of her children’s fathers. Clay

      DCS personnel obtained a protective order barring Mother from appearing at

      their offices and supervision of Mother’s case was again transferred.


[6]   Mother underwent a psychological evaluation and was diagnosed as having

      bipolar disorder, cannabis dependency, and panic disorder. She had a

      provisional diagnosis of borderline personality disorder. She was briefly

      hospitalized after expressing suicidal and homicidal ideations. Mother

      participated in some individual and group therapy but elected not to take her

      prescribed psychiatric medications.


[7]   Mother was on probation stemming from a Montgomery County conviction for

      conversion when she failed a drug screen and was returned to jail in January of


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019   Page 3 of 11
      2018. On March 29, 2018, the DCS petitioned to terminate Mother’s parental

      rights to J.L. Mother was released from jail in May of 2018 and became

      significantly more compliant with services.


[8]   On August 28 and September 18, 2018, the trial court conducted an evidentiary

      hearing. On February 19, 2019, the court issued its order terminating Mother’s

      parental rights to J.L. Mother now appeals.1



                                      Discussion and Decision
                      Standard of Review – Sufficiency of the Evidence
[9]   When we review whether the termination of parental rights is appropriate, we

      will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d

      1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable

      inferences that are most favorable to the judgment. Id. In so doing, we give

      “due regard” to the trial court’s unique opportunity to judge the credibility of

      the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010) (citing Indiana

      Trial Rule 52(A)). We will set aside the trial court’s judgment only if it is

      clearly erroneous. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229

      (Ind. 2013). In order to determine whether a judgment terminating 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




      1
          J.L.’s father agreed to termination of his parental rights and he is not an active party on appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019                          Page 4 of 11
       findings clearly and convincingly support the judgment. I.A., 934 N.E.2d at

       1132.


         Requirements for Involuntary Termination of Parental Rights
[10]   “The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children.” In re

       Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

       of a constitutional dimension, the law provides for the termination of those

       rights when the parents are unable or unwilling to meet their parental

       responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143,

       147 (Ind. 2005). The State is required to prove that termination is appropriate

       by a showing of clear and convincing evidence, a higher burden than

       establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.


[11]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

       allege and prove by clear and convincing evidence to terminate a parent-child

       relationship:


               (A) that one (1) of the following is true:

               (i)    The child has been removed from the parent for at least six
               (6) months under a dispositional decree.
               (ii)   A court has entered a finding under IC 31-34-21-5.6 that
               reasonable efforts for family preservation or reunification are not
               required, including a description of the court’s finding, the date
               of the finding, and the manner in which the finding was made.
               (iii) The child has been removed from the parent and has been
               under the supervision of a local office or probation department

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019   Page 5 of 11
               for at least fifteen (15) months of the most recent twenty-two (22)
               months, beginning with the date the child is removed from the
               home as a result of the child being alleged to be a child in need of
               services or a delinquent child;


               (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.
               (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.


[12]   Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

       therefore the court need only to find that one of the three requirements of

       subsection (b)(2)(B) was established by clear and convincing evidence. See In re

       L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), trans. denied, cert. denied.


                                                    Analysis
[13]   Mother argues that three factual findings supporting the trial court’s

       conclusions as to removal conditions and best interests are erroneous and,

       without the erroneous findings, the evidence is deficient. Specifically, Mother

       challenges the factual findings that she has a “severe untreated mental illness,”
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019   Page 6 of 11
       failed to participate in services, and has had a pattern of instability. Appellant’s

       Brief at 11.


[14]   A claim of insufficient evidence as to likelihood of remedying conditions

       invokes a “two-step analysis.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). First,

       we identify the conditions that led to removal; and second, we must determine

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

       remedied. Id. In the second step, the trial court must judge parental fitness as

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

       changed conditions. Id. (citing Bester, 839 N.E.2d at 152). The trial court is

       entrusted with balancing a parent’s recent improvements against habitual

       patterns of conduct. Id. The trial court has discretion to weigh a parent’s prior

       history more heavily than efforts made only shortly before termination. Id.

       “Requiring trial courts to give due regard to changed conditions does not

       preclude them from finding that parents’ past behavior is the best predictor of

       their future behavior.” Id.


[15]   Child was removed from Mother’s care when a DCS informal adjustment

       failed. At that time, Mother and her newborn had tested positive for

       methamphetamine. Mother had not completed a drug assessment, as agreed

       upon as part of the informal adjustment. She did not have employment or

       stable housing. Over the next two years, Mother participated in some services

       but did not ever progress to having unsupervised visits with Child. Nor did she

       maintain long-term sobriety, obtain independent housing, retain employment,

       or comply with recommended psychiatric treatment.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019   Page 7 of 11
[16]   Although Mother regularly visited with Child, the visits were marked by

       inappropriate speech and conduct. For example, Mother threatened to kill the

       fathers of her children. She struck one of the fathers during a visit and the

       police were called. At times, Mother appeared for visits “scattered” and

       “jumpy,” and one visit ended when Mother fell into a wall. (Tr. Vol. III, pg.

       16.) On another occasion, Mother began screaming while holding her

       newborn. She “didn’t seem stable” and the services were “put on hold.” Id. at

       18. Ultimately, Mother participated in some group and individual therapy, but

       she rejected any prescribed medication in favor of attempts to “cope like a

       normal person.” Id. at 186.


[17]   Mother claims that the trial court mischaracterized the severity of her mental

       illness. She does not contest her bipolar diagnosis, but asserts that she suffers

       from a milder type that is not marked by dramatic shifts between depression

       and mania. The testimony of service providers indicates that, although Mother

       may not suffer from the most severe form of bipolar disorder, she suffers from

       multiple forms of mental illness, and has frequently displayed lack of impulse

       control in interpersonal interactions. She was subject to a protective order to

       bar her from contacting or threatening Clay DCS caseworkers. She has

       received in-patient treatment after threats to harm herself and others. Critically,

       although Mother was diagnosed with bi-polar disorder, cannabis disorder, and

       panic disorder, and provisionally diagnosed with borderline personality

       disorder, she rejected all prescribed medication. The trial court’s factual finding




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019   Page 8 of 11
       that Mother has severe untreated mental illness is not lacking evidentiary

       support.


[18]   Mother also claims the trial court erred in finding that she was non-compliant

       with services. She points to testimony that, since her release from jail on the

       probation violation, she has consistently participated in home-based therapy

       and provided drug screens that were negative for substances other than THC.

       But the testimony of record also discloses that Mother’s earlier participation in

       services had been sporadic. She had failed to attend a scheduled psychological

       evaluation, had not appeared for drug screens on numerous occasions, and had

       failed to complete a six-month program at the Hamilton Center. Numerous

       drug screens were positive for methamphetamine and THC. Mother’s

       visitation had been suspended on more than one occasion due to her disruptive

       behavior. Again, the factual finding that Mother was non-compliant is not

       lacking evidentiary support.


[19]   The final factual finding challenged by Mother is that she has a pattern of

       instability. At the termination hearing, Mother testified that she was living with

       her mother and did not consider that residence to be a suitable place for Child.

       She further testified that she had lost her job at the time of her last incarceration

       but was doing some work for cash and selling her plasma and had hopes of

       being rehired by a temporary agency. On appeal, she concedes her lack of a

       permanent job or residence, but argues that finding full-time employment was

       highly unlikely in light of her participation in time consuming services spanning

       both first and second shifts. We do not minimize the challenges or time

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019   Page 9 of 11
       constraints that Mother faced. However, her argument is at bottom a request to

       reweigh the evidence. This we cannot do. In re V.A., 51 N.E.3d at 1143.


[20]   Mother also contends that the DCS did not present clear and convincing

       evidence that termination is in Child’s best interests. In determining what is in

       a child’s best interests, the court must look to the totality of the evidence. In re

       A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. We have

       previously held that recommendations by the case manager and CASA 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. at 1158-59.


[21]   Child had been removed from Mother’s care for over two years. She had spent

       two-thirds of her life with her foster parents, who wished to adopt her. Child’s

       caseworker and CASA both recommended termination of Mother’s parental

       rights. Commendably, Mother had a recent history of sobriety from

       methamphetamine and active participation in services. That said, a court has

       discretion to weigh historical conduct more heavily than recent efforts. In re

       E.M., 4 N.E.3d at 643. Mother’s contention that the trial court failed to

       adequately consider the impact of severing Child’s relationship with her siblings

       is simply a request to reweigh the evidence. There is not insufficient evidence

       that termination of parental rights is in Child’s best interests.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019   Page 10 of 11
                                               Conclusion
[22]   The DCS established by clear and convincing evidence the requisite elements to

       support the termination of parental rights.


[23]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-655 | September 3, 2019   Page 11 of 11
