MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                  Feb 28 2020, 10:55 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
Brian A. Karle                                            Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana

                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              February 28, 2020
Parent-Child Relationship of:                             Court of Appeals Case No.
                                                          19A-JT-1744
M.A. and D.H. (Minor
Children)                                                 Appeal from the Montgomery
                                                          Superior Court
       and
                                                          The Honorable Heather L. Barajas,
J.A. (Mother),                                            Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          54D01-1808-JT-249, 54D01-1808-
        v.                                                JT-251

The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020                    Page 1 of 17
      Altice, Judge.


                                                  Case Summary


[1]   J.A. (Mother) appeals from the involuntary termination of her parental rights to

      her two minor children, M.A. (Daughter) and D.H. (Son) (collectively, the

      Children). Mother challenges the sufficiency of the evidence supporting the

      termination order.


[2]   We affirm.


                                         Facts & Procedural History


[3]   While in a relationship with M.H., Mother gave birth, at the age of nineteen, to

      Daughter in Wisconsin in February 2013. M.H. is Daughter’s legal father,

      having signed a paternity affidavit. 1 The family moved to Indiana in 2013.

      When Daughter was about two years old, Mother and M.H. ended their

      romantic relationship but remained friendly. Thereafter, Mother was

      Daughter’s primary caregiver, moving between Wisconsin – where Mother had

      family – and Indiana at times.


[4]   At some point, Mother began a tumultuous relationship with F.H. and

      eventually became pregnant with Son. Mother regularly used marijuana while




      1
       During the underlying CHINS proceedings in September 2017, DNA test results established that M.H. is
      not Daughter’s biological father. He was dismissed from the case but then brought back in after the signed
      paternity affidavit was discovered.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020               Page 2 of 17
      pregnant. She moved with Daughter multiple times during the pregnancy

      between Indiana and Wisconsin. They lived with family in Wisconsin, then

      with F.H. and his mother (Paternal Grandmother) in Indiana, then with a

      friend until he was deported, then in a homeless shelter, and then in a trailer in

      Indiana with F.H. and his cousin. By the time of Son’s birth in May 2017,

      Mother and Daughter were living with M.H. rather than F.H.


[5]   The Indiana Department of Child Services (DCS) became involved around the

      time of Son’s birth, when the hospital made a report that Mother tested positive

      for THC. Mother reported that she used marijuana during the pregnancy at

      least monthly. 2 The hospital staff had concerns that F.H. and M.H. also used

      illegal substances. DCS family case manager (FCM) Johnathan Chadd

      investigated the report, and M.H. voluntarily submitted to drug screens, testing

      positive for THC and methamphetamine. F.H. acknowledged that he used

      marijuana on a regular basis, which was confirmed by a drug screen. Mother

      and FCM Chadd developed a safety plan in which Mother agreed to no longer

      allow Daughter to spend unsupervised time with M.H.


[6]   Mother and the Children moved back in with F.H., initially at Paternal

      Grandmother’s house. There was discord within two weeks of Son’s birth, so

      Mother moved out with Daughter to a friend’s home in early June. F.H.




      2
          Son’s cord blood screen later came back positive for THC.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 3 of 17
       moved into this home “once or twice” but then would leave again with Son

       when Mother and F.H. fought. Transcript at 158.


[7]    In the meantime, on June 2, 2017, M.H. had been arrested and charged with

       multiple counts, the most serious of which was Level 4 felony possession of

       methamphetamine. He pled guilty on July 17, 2017, pursuant to a plea

       agreement, to Level 6 felony possession of cocaine and Class B misdemeanor

       possession of marijuana and was placed on probation.


[8]    DCS filed CHINS petitions on June 23, 2017, and FCM Kimberly Whitus

       began working with the family. When M.H. was released from jail on July 17,

       2017, Mother permitted him to move into the home in which she and Daughter

       were staying. Shortly thereafter, the electricity was shut off to the home. F.H.

       then talked Mother into moving into a motel with him, as he had been kicked

       out of Paternal Grandmother’s home. They lived in the motel together with

       Daughter and sometimes Son, who otherwise was with Paternal Grandmother.


[9]    On August 5, 2017, F.H. contacted FCM Whitus and informed her that he

       believed Mother was using illegal drugs. Specifically, he reported that the

       previous night Mother had used what he believed to be heroin in the motel

       bathroom while Daughter was sleeping. He argued with Mother when she

       came out of the bathroom and then they fell asleep.


[10]   FCM Whitus and a local police officer came to the motel room the same day as

       F.H.’s report. The officer found heroin and methamphetamine inside the room

       in a location within “easy reach” of four-year-old Daughter. Transcript at 188.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 4 of 17
       Mother was not present at the time, and FCM Whitus had difficulty reaching

       her. When Mother eventually contacted FCM Whitus, she claimed to be out of

       town. The record is unclear regarding whether the Children were present when

       FCM Whitus and the officer first arrived, but they were eventually on the scene

       along with F.H. and Paternal Grandmother.


[11]   The Children were immediately removed on an emergency basis from F.H. and

       Mother’s care by FCM Whitus. Son was placed with Paternal Grandmother,

       and Daughter was placed with M.H. Thereafter, on August 7, 2017, FCM

       Whitus filed amended CHINS petitions to incorporate these new allegations.


[12]   Following a factfinding hearing on September 12, 2017, the Children were

       adjudicated CHINS. The CHINS order for Daughter contained the following

       findings of fact:


               a. [Mother] admitted to regularly using THC during pregnancy
               and felt it was not an issue, endangering the unborn child.


               b. [M.H.] also admitted smoking THC and was arrested for
               possession of methamphetamine, marijuana and cocaine.


               c. The parents all lack stability ….


               d. There is no stable housing.


               e. During an investigation at the Crawfordville Motel where
               mother was living with [F.H.] for 2 weeks, [F.H.] was concerned
               about mother’s heroin use. Law enforcement found heroin on a
               knife by the bedside table, as well as drug paraphernalia and

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 5 of 17
               evidence of methamphetamine under the table all accessible to
               [Daughter].


               f. Mother, who is the legal custodian of both the children, is now
               incarcerated and unable to care for the children.


               g. While not under compulsion to participate, the parents agreed
               to do services and have been inconsistent.


       Exhibits Vol. I at 120-21. The CHINs order for Son had virtually the same

       findings. The court ordered that the Children remain in their current

       placements. However, on September 20, 2017, Daughter was removed from

       M.H.’s care after he tested positive for methamphetamine, which resulted in his

       return to jail for violation of his terms of probation. Daughter has since

       remained in foster care.


[13]   A dispositional hearing was held on October 16, 2017. Thereafter, on

       November 6, the court ordered services for Parents to “address substance abuse

       issues and underlying related issues.” Id. at 157. Specifically, the court ordered

       Mother to, among other things, keep all appointments with service providers,

       maintain stable housing and income, refrain from using illegal substances, obey

       the law, submit to random drug screens, participate in supervised visitations,

       and complete a parenting assessment, substance abuse assessment, and an

       Intensive Family Preservation program, as well as any recommended services

       and treatment.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 6 of 17
[14]   After issuance of the dispositional order, Mother was generally noncompliant

       with services. By her own account, she was using methamphetamine and living

       with F.H. and/or friends and “bouncing around after that.” Transcript at 162.

       Mother regularly cancelled or was a no-show to supervised visits, she did not

       participate in intensive outpatient (IOP) treatment as recommended, was

       noncompliant with homebased services, and failed to appear for the majority of

       her random drug screens and tested positive for methamphetamine on others.

       Services were repeatedly closed out due to noncompliance. Further, Mother

       did not attend the child and family team meetings/case plan conferences on

       March 10, 2018 or May 21, 2018.


[15]   DCS filed a progress report with the court that covered the period of January 8,

       2019 through May 10, 2018. The report indicated that Mother, as well as F.H.

       and M.H., had “made no active progress in the review period.” Exhibits Vol. I

       at 227. The report explained:


               She has been inconsistent with visits. She has been discharged
               for non compliance, twice. Out of 18 possible visits during the
               review period[.] She has visited with [Daughter] 5 times and
               [Son] 3 times. Currently has only visited 2 out of 5 potential
               times and is in danger of being discharged for the 3rd time.


               She has not attended any court ordered services for substance
               abuse or home based casework. She has only submitted to 4 drug
               screens out of 34, 3 positive for methamphetamine.


       Id. at 228. The report also indicated that Mother was “currently homeless and

       unemployed.” Id. at 230.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 7 of 17
[16]   Following a permanency hearing on June 27, 2018, the CHINS court granted

       DCS’s request to change the permanency plan to adoption. Additionally, the

       court relieved DCS from the obligation of offering services to the parents,

       including visits.


[17]   Mother had no contact with the Children or DCS between June and December

       2018, and she did not appear for the review hearing in November. During this

       time, she moved between Indiana and Wisconsin and, in August, was arrested

       and charged with possession of THC and possession of drug paraphernalia.

       Bench warrants were issued for her arrest in October and December for failure

       to appear at hearings on these criminal charges. Mother took drug screens on

       December 13 and 14, 2018, which came back positive for THC. These were her

       first drug screens since mid-June 2018, when she tested positive for THC and

       methamphetamine.


[18]   On August 29, 2018, DCS filed the instant petitions for involuntarily

       termination of parent-child relationship (TPR Petitions). Factfinding hearings

       were held on the TPR Petitions on November 9, 2018, January 31, 2019, and

       February 19, 2019.


[19]   On the November hearing date, Mother informed the court that she had

       “[b]asically” been homeless and unemployed since February 2018 and was

       currently “couch surfing.” Transcript at 15. A few months later in January,

       Mother testified that she was still unemployed but had been living for about a

       month in an apartment under a lease signed by a woman whom Mother termed


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 8 of 17
       a mentor. Mother indicated that she was living with a new boyfriend who “just

       got out of jail like a week ago” and was on probation for intimidation. Id. at

       177. She also testified that she was about to run out of money but had a job

       interview lined up. Mother acknowledged that services had been offered to her

       multiple times and that she did not participate in those services due to

       methamphetamine use. She asked the court for another chance with services

       but acknowledged that the Children “don’t deserve” to have to wait for her to

       gain stability. Id. at 180. Finally, Mother testified that while she is bonded

       with Daughter, she did not feel like she is bonded with Son.


[20]   Regarding his stability at the time of the termination hearing, M.H.

       acknowledged that he was currently without stable housing, was unemployed,

       had not seen Daughter since her removal from his care, and had been arrested

       recently for resisting law enforcement and possession of marijuana and had

       violated probation. When asked about permanency for Daughter, he testified:

       “Primarily I would suggest her with her parents, but seeing how you look at my

       rap sheet … and how I’m not financially stable, there could not be a better

       caregiver on this planet for her right now” than where she is currently placed.

       Id. at 135. Similarly, at the hearing, F.H. indicated that he was unemployed

       and lacked stability and that Son was “in a good place” with Paternal

       Grandmother. Id. at 142.


[21]   FCM Whitus testified on the last day of the hearing and detailed the events

       leading up to the Children’s removal, services offered to Mother, and Mother’s

       response to services. She then summarized as follows:

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 9 of 17
               Since I got this case, the parents have been, the instability has
               been unreal. There has been, most periods have been
               homelessness, also drug use. I repeatedly put in so many
               resources. I’ve given them the tools to try to clean up their life.
               To get the stability I’ve put in homebased case managers over
               and over again to help them with housing, help with
               employment, time management, life skills and just repeatedly
               you know you can give them the tools, but they’ve got to pick
               them up and take them. Over and over, I feel like the department
               has tried to help them and they just aren’t willing to do it.


       Id. at 221-22. FCM Whitus opined that termination of parental rights was in

       the best interests of the Children, who were both doing well in stable pre-

       adoptive homes. Paternal Grandmother expressed interest in adopting Son,

       and Daughter’s foster family since October 2017 wished to adopt her.


[22]   The CASA, with the family since December 2017, similarly testified that he

       believed termination was in the Children’s best interests. The CASA

       emphasized the importance of stability and a safe environment for the Children

       and noted: “Having a home, having a job, having that ability to take care of

       [the Children] it just never developed through [the CHINS] process.” Id. at

       242. The CASA continued: “I believe [the parents] were given opportunities to

       reach out and do those services…. [T]hey just never took that step and I wish

       they would have, but they didn’t.” Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 10 of 17
[23]   On July 19, 2019, the trial court issued its order terminating Mother’s parental

       rights to the Children. 3 Mother now appeals. Additional information will be

       provided below as needed.


                                                Discussion & Decision


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

       evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628

       (Ind. 2016). Instead, we consider only the evidence and reasonable inferences

       most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. In deference to the trial court’s unique position to assess

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

       relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied. In light of the applicable clear and convincing

       evidence standard, we review to determine whether the evidence clearly and

       convincingly supports the findings and whether the findings clearly and

       convincingly support the judgment. In re R.S., 56 N.E.3d at 628.


[25]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet



       3
           F.H.’s and M.H.’s respective rights were also terminated, but they do not participate in this appeal.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020                   Page 11 of 17
       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[26]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things, that one 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[.]


       Ind. Code § 31-35-2-4(b)(2)(B); Ind. Code § 31-37-14-2. DCS must also prove

       by clear and convincing evidence that termination is in the best interests of the

       child and that there is a satisfactory plan for the care and treatment of the child.

       I.C. § 31-35-2-4(b)(2)(C), (D); I.C. § 31-37-14-2.


[27]   Here, Mother argues only that DCS failed to prove by clear and convincing

       evidence that there is a reasonable probability that she will not remedy the

       conditions leading to the Children’s removal. In this regard, she claims that the
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 12 of 17
       original basis for removal was her alleged methamphetamine and heroin use

       and that the evidence does not establish a likelihood that she would not remedy

       that issue because in December 2018 she only tested positive for THC. Further,

       Mother notes that she obtained an apartment just before the termination

       hearing and also attempted to restart therapy (completing intake and one

       therapy session in December 2018 but no IOP sessions).


[28]   In addition to rejecting Mother’s invitation to reweigh the evidence, we observe

       that the trial court found that clear and convincing evidence also established

       that the continuation of the parent-child relationship posed a threat to the

       Children’s well-being. I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive and,

       thus, requires the trial court to find only one of the requirements of the

       subsection by clear and convincing evidence. See In re L.S., 717 N.E.2d at 209.

       “Standing alone, the finding that the parent-child relationship posed a threat to

       the well-being of [the Children] satisfies the requirement listed in subsection

       (B).” Id. In other words, we need not reach Mother’s arguments related to I.C.

       § 31-35-2-4(b)(2)(B)(i).


[29]   Moreover, the evidence amply supports the trial court’s conclusion that a

       reasonable probability exists that the conditions resulting in the Children’s

       removal or continued placement outside Mother’s home will not be remedied.


               In making such a determination, the court must judge a parent’s
               fitness to care for his or her child at the time of the termination
               hearing, taking into consideration evidence of changed
               conditions. Due to the permanent effect of termination, the trial
               court also must evaluate the parent’s habitual patterns of conduct

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 13 of 17
               to determine the probability of future neglect or deprivation of
               the child. The statute does not simply focus on the initial basis
               for a child’s removal for purposes of determining whether a
               parent’s rights should be terminated, “but also those bases
               resulting in the continued placement outside the home.” In re
               A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. A
               court may properly consider evidence of a parent’s prior criminal
               history, drug and alcohol abuse, history of neglect, failure to
               provide support, and lack of adequate housing and employment.
               Moreover, a trial court “can reasonably consider the services
               offered by the [DCS] to the parent and the parent’s response to
               those services.” [McBride v. Monroe Cty. Office of Family &
               Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003)]. In addition,
               “[w]here there are only temporary improvements and the pattern
               of conduct shows no overall progress, the court might reasonably
               find that under the circumstances, the problematic situation will
               not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.
               2005).


       In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (some citations omitted).


[30]   We initially address Mother’s challenge to the following finding of fact made by

       the trial court:


               7. Allegations of continued drug use were made. The DCS and
               law enforcement investigated and found [Daughter] in a hotel
               with her half-brother, [Son], and [F.H.], her mother’s boyfriend.
               Methamphetamine and heroin in the hotel room [were] within
               [Daughter’s] reach.


       Appellant’s Appendix at 60. Mother asserts that the Children were not in the

       room when the drugs were found but rather were staying with Paternal

       Grandmother. The evidence on this point is not so clear. FCM Whitus


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 14 of 17
       testified that the Children were present at the time, but then, on cross

       examination, testified that she was not sure whether they came to the motel

       with Paternal Grandmother after the discovery of the drugs. Regardless, the

       evidence established that illegal drugs were found in the motel room in which

       Mother and F.H. stayed with Daughter (and sometimes Son), and the drugs

       were found within easy reach of Daughter. The trial court’s finding is not

       clearly erroneous.


[31]   The Children were removed from Mother’s care in August 2017 and thereafter

       remained out of her care due to illegal drug use and associated instability in

       housing and employment. DCS provided her with countless services to address

       these issues, but Mother consistently failed to cooperate throughout the CHINS

       proceedings and was regularly discharged for noncompliance. Rather than visit

       with the Children and work on her substance abuse and instability issues,

       Mother used methamphetamine and marijuana and remained without stable

       housing or employment. The trial court summarized Mother’s lack of progress

       in the termination order:


               15. Mother was discharged from random drug testing with
               Redwood, supervised visitation, case management, individual
               therapy and IOP, all for non-compliance. She was discharged
               from IOP, case management services and supervised visits three
               times for noncompliance. She failed to appear multiple times for
               family team meetings. She failed to appear for 13 of her 20 drug
               screens. Of the seven she attended, she tested positive twice.
               Mother failed to appear for an appointment with Pam’s Promise
               to secure housing and services. Mother had various excuses for
               her behavior, including that she was sad, [F.H.] was abusing her,

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 15 of 17
               she overslept, she was looking for a job. Mother had no contact
               with DCS or the children between June and December 2018.
               Mother never secured housing, employment, sobriety or stability.


       Id. at 60-61.


[32]   In November 2018, fifteen months after the Children’s removal, Mother

       informed the trial court that she had “[b]asically” been homeless and

       unemployed since February 2018 and was currently “couch surfing.” Transcript

       at 15. At the January 31, 2019 hearing, Mother testified that she was still

       unemployed but had been living for about a month in an apartment leased to

       someone else. Mother was living in this apartment with a new boyfriend who

       had just been placed on probation for intimidation. Mother acknowledged that

       she was about to run out of money.


[33]   The evidence establishes that Mother was in no position to care for the Children

       at the time of the termination hearing and that she had not made any progress

       toward gaining stability. Further, we place no stock in Mother’s suggestion on

       appeal that because she tested positive for only THC in December 2018, after

       six months of no screens, that her “primary substance abuse issue –

       methamphetamine – was remedied several months before termination.”

       Appellant’s Brief at 15.


[34]   DCS established by clear and convincing evidence that there is a reasonable

       probability that Mother’s behavior and instability will not change. Thus, the

       trial court’s conclusion that there is a reasonable probability that the conditions

       resulting in the Children’s removal and continued placement outside Mother’s
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 16 of 17
       care will not be remedied is supported by the evidence and not clearly

       erroneous. As Mother does not challenge any of the other conclusions made by

       the trial court, we affirm the termination of her parental rights.


[35]   Judgment affirmed.


       Robb, J. and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1744 | February 28, 2020   Page 17 of 17
