MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Oct 03 2016, 10:05 am

regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Andrew J. Sickmann                                        Gregory F. Zoeller
Boston Bever Klinge                                       Attorney General of Indiana
Cross & Chidester
                                                          Robert J. Henke
Richmond, Indiana                                         Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         October 3, 2016
Child Relationship of H.L.                                Court of Appeals Case No.
(Minor Child),                                            89A01-1604-JT-911
C.L. (Mother) and L.F. (Father),                          Appeal from the Wayne Superior
                                                          Court
Appellants-Respondents,
                                                          The Honorable Darrin M.
        v.                                                Dolehanty, Judge
                                                          Trial Court Cause No.
The Indiana Department of                                 89D03-1511-JT-40
Child Services,
Appellee-Petitioner




Baker, Judge.


Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016          Page 1 of 14
[1]   C.L. (Mother) and L.F. (Father) appeal the trial court’s order terminating their

      parent-child relationship with their child, H.L. (Child). Mother and Father

      argue that there is insufficient evidence supporting the termination order.

      Finding the evidence sufficient, we affirm.


                                                      Facts
[2]   Child was born on July 3, 2014, and had opiates in her system at the time of her

      birth. Mother later admitted using heroin throughout her pregnancy. Father

      was incarcerated at that time. The Department of Child Services (DCS)

      became involved with the family based on concerns of Mother’s drug use.

      Mother agreed to participate in a program of Informal Adjustment, but the

      program was unsuccessful because Mother continued to test positive for heroin

      as well as cocaine and marijuana.


[3]   On October 24, 2014, the trial court authorized the removal of Child from

      Mother’s care and custody because of Mother’s ongoing substance abuse and

      Father’s incarceration. Additionally, DCS alleged that Mother had left the

      infant in a residence where a known heroin user resides. On October 31, 2014,

      DCS filed a petition alleging that Child was a Child in Need of Services

      (CHINS) based on Mother’s substance abuse and Father’s incarceration. The

      same day, both parents admitted to the allegations in an amended CHINS

      petition1 and Child was adjudicated a CHINS. Also at that hearing, the trial




      1
          The amended CHINS petition was not admitted into evidence.


      Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 2 of 14
      court found Mother in contempt for continuing to use illegal drugs and

      sentenced her to ninety days imprisonment. Father was released from

      incarceration on November 17, 2014.


[4]   The trial court issued a dispositional decree on November 25, 2014, ordering

      both parents to do the following: submit to random drug screens; complete a

      substance abuse assessment and comply with all recommendations; attend all

      scheduled visits with Child; and maintain a stable source of income. Father

      was ordered to participate in the Engaging Fathers program and Mother was

      ordered to complete inpatient substance abuse treatment. Additionally, the trial

      court authorized Mother’s release from jail so that she could begin inpatient

      substance abuse treatment.


                                                    Mother
[5]   Mother successfully completed inpatient substance abuse treatment, but she

      tested positive for methamphetamine just one week later. DCS referred Mother

      to a substance abuse counselor, but Mother participated infrequently and

      inconsistently, and when she did participate she was often dishonest. That

      provider stopped working with Mother in July 2015 because of Mother’s failure

      to progress.


[6]   On February 6, 2015, the trial court again found Mother in contempt for failing

      to appear at a hearing and sentenced her to thirty days in jail. She was released

      in March 2015.



      Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 3 of 14
[7]    Mother was participating with homebased case management between July 2014

       and September 2015. She was supposed to attend once a week, but after Child

       was removed in October 2014, Mother’s participation became inconsistent. As

       of the July 6, 2015, CHINS review hearing, Mother had not attended a case

       management session since she was released from incarceration on March 28,

       2015. Mother was unsuccessfully discharged from this service because of

       noncompliance and incarceration.


[8]    Mother’s homebased case manager also supervised her visits with Child.

       Mother did not consistently attend her scheduled visits and sometimes appeared

       to be under the influence when she attended. At the time of the termination

       hearing, Mother’s last visit with Child had occurred on August 25, 2015.


[9]    Mother was arrested on July 7, 2015, and charged with Level 6 felony theft,

       Level 6 felony possession of a legend drug, and class A misdemeanor

       possession of paraphernalia; on July 14, 2015, she was charged with class A

       misdemeanor conversion in a separate cause. On July 29, 2015, Mother

       pleaded guilty to conversion and was sentenced to four days in jail. She was

       released on August 5, 2015.


[10]   In August 2015, DCS referred Mother to an intensive outpatient treatment

       program, but Mother never completed the required substance abuse assessment

       and that referral was closed.


[11]   On September 17, 2015, Mother was arrested, and on October 9, 2015, she was

       charged with ten counts of Level 6 felony fraud. In December 2015, while

       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 4 of 14
       incarcerated, Mother completed a substance abuse assessment, indicating that

       she used methamphetamine, heroin, marijuana, and opiate pain pills. She had

       last used illicit substances before she was arrested in September 2015. Mother

       has participated with substance abuse counseling while incarcerated; her

       counselor has recommended that Mother again complete inpatient substance

       abuse treatment once she is released.


[12]   On February 9, 2016, Mother pleaded guilty to Level 6 felony theft and one

       count of Level 6 felony fraud. She was sentenced to one year for each of the

       two convictions, to be served consecutively. At the time of the termination

       hearing, Mother was still incarcerated, with an earliest possible release date of

       May 15, 2016.


[13]   During the underlying CHINS case, Mother lived at three different residences,

       in addition to the five times she was incarcerated. At the time of the

       termination hearing, she had not met her goals of going back to school,

       securing housing, or finding employment. Mother’s only income occurred

       during the program of Informal Adjustment and consisted of food stamps and

       Temporary Assistance for Needy Families. Both income sources discontinued

       after Child’s removal in October 2014, and Mother has not had any income

       since that time.


                                                      Father
[14]   Father attended only two visits with Child; both visits took place in December

       2014. He failed to attend a third visit in December 2014 and had no visits after

       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 5 of 14
       that time because he failed to maintain contact with DCS during the period of

       time he was not incarcerated.


[15]   On April 7, 2015, Father was arrested on a charge of Level 6 felony possession

       of methamphetamine. He eventually pleaded guilty as charged and was

       sentenced to one year of incarceration. At the time of the termination hearing,

       his earliest possible release date was September 2, 2016, at which time he will

       be on parole for a minimum of six months. While incarcerated, he has

       participated in the Engaging Fathers and Thinking for a Change programs and

       has obtained his GED. He was enrolled in a substance abuse program but

       stopped attending because he did not receive a reduction in his sentence for

       participating.


[16]   DCS filed a petition to terminate the parent-child relationship between both

       parents and Child on November 20, 2015. Following a February 24, 2016,

       factfinding hearing, the trial court entered an order terminating the parent-child

       relationship. In pertinent part, the trial court found and concluded as follows:

               B.      There is clear and convincing evidence to establish a
               reasonable probability that the conditions that led to the child’s
               removal from her home, and the reasons for her placement
               outside of that home, will not be remedied. [Child] was born
               with opiates in her system, due to Mother’s ongoing use of illegal
               drugs while pregnant. . . . Mother continued to test positive for
               illegal drug use. . . . Mother completed a three-week inpatient
               substance abuse treatment program on December 22, 2014. By
               December 29, 2014, Mother had already relapsed . . . . Since
               that time, Mother disappeared for a couple of months, and then
               was incarcerated for another month. . . . Mother was

       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 6 of 14
        incarcerated various times in July and August, 2015. She has
        remained incarcerated since mid-September, 2015. The child
        was removed from Mother’s care due to Mother’s longstanding
        and continuing substance abuse. Despite inpatient and
        outpatient substance abuse treatment, Mother continued to
        prioritize drugs over her infant child. Since July, 2015, Mother
        has committed and been convicted and sentenced for Criminal
        Conversion, Theft, and Fraud.


               Father was incarcerated when [Child] was born, and other
        than two visits with her in December, 2014, has had no
        relationship with her. Father has been incarcerated for most of
        [Child’s] life. He has only even visited with her for a few hours
        since she was born. . . . Father has no job and no home, and it is
        not reasonable to conclude that he would be able to immediately
        provide for [Child’s] needs upon his release from incarceration.


               The law does not require, and the Court does not conclude,
        that there is absolutely no chance that the parents might someday
        be able to overcome or remedy the reasons why [Child] was
        removed from her home, and why she has remained removed
        from her home since a few weeks after her birth. Nonetheless,
        the Court does conclude that there is clear and convincing
        evidence of a reasonable probability that the reasons for removal
        and ongoing placement will not be remedied.


        C.     There is clear and convincing evidence to conclude that
        termination of the parent-child relationship is in this child’s best
        interest. This child has lived the vast majority of her life in the
        absence of her biological parents. She has spent very little time
        with her mother, due to Mother’s repeated abuse of illegal drugs
        as well as repeated, and ongoing, periods of incarceration. She
        has spent virtually no time with her father, due to Father’s initial
        incarceration, abandonment of the child for several months, and
        then return to incarceration. There is an absence of reason to
        conclude that [Child] recognizes either parent as a parent. In
Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 7 of 14
               stark contrast, for nearly 85% of her life, [Child] has lived with a
               suitable adoptive family. Her needs are provided. She is
               comfortable, smart, and advancing as would be expected of a
               normal child in a safe environment.


       Appellants’ App. p. 92-93 (emphases original). Mother and Father now appeal.


                                    Discussion and Decision
                                       I. Standard of Review
[17]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).



       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 8 of 14
[18]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:


               (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 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.


       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 9 of 14
                         (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.


       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                                                   II. Mother
[19]   Mother argues that there is insufficient evidence supporting the trial court’s

       termination order. Specifically, she argues that there is insufficient evidence

       establishing that (1) there is a reasonable probability that the conditions that

       resulted in Child’s removal or the reasons for placement outside the home of

       the parents will not be remedied; 2 and (2) termination is in Child’s best

       interests.


[20]   In considering Mother’s first argument, we note that we must evaluate the

       initial conditions leading to the child’s removal as well as the reasons the child

       continues to be placed outside the home. In re A.I., 825 N.E.2d 798, 806 (Ind.




       2
         Mother and Father both make much of the fact that they admitted to the allegations in an amended CHINS
       petition and the amended petition is not in the record. They contend that because we do not know the
       reasons for the CHINS adjudication, DCS has failed to prove its case under this prong of the statute. But the
       statute focuses on the reasons for the child’s removal, not the reasons for the CHINS adjudication. Therefore,
       this argument is unavailing.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016            Page 10 of 14
       Ct. App. 2005). In this case, Child was originally removed from Mother’s care

       and custody primarily because of Mother’s ongoing substance abuse. Child has

       continued to be placed outside of Mother’s care and custody because of

       continuing concerns about substance abuse, repeated incarcerations, and

       Mother’s failure to complete court-ordered services.


[21]   In finding that DCS had met its burden of proving this prong of the statute, the

       trial court found the following relevant facts:


            Child was born with opiates in her system. Mother admitted to regular
             use of heroin while pregnant.
            Mother continued to test positive for illegal drug use during the program
             of Informal Adjustment. She was incarcerated as a result.
            After her release from incarceration, she successfully completed inpatient
             substance abuse treatment. She relapsed one week later.
            Since that time, Mother lost contact with DCS and the trial court for two
             months and was incarcerated several other times, amassing three
             convictions during the CHINS and termination proceedings.
            Mother was not participating consistently with court-ordered services,
             including her visits with Child. The visitation supervisor believed that
             Mother was under the influence during multiple visits.
            At the time the termination order was issued in February 2016, Mother
             had remained incarcerated since September 2015.
            Mother participated in a substance abuse assessment during the most
             recent incarceration. That assessment recommended another round of
             inpatient substance abuse treatment upon her release.
            Mother has no source of income and no residence.

[22]   In short, Mother had multiple opportunities over the course of nearly two years

       to ameliorate her substance abuse issues and improve her parenting and life

       skills. Her repeated failures to remain sober, live a law-abiding life, and comply


       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 11 of 14
       with court-ordered services readily support the trial court’s conclusion that DCS

       proved by clear and convincing evidence that there is a reasonable probability

       that the conditions that resulted in Child’s removal and continued placement

       outside of Mother’s care and custody will not be remedied. We decline to

       reverse on this basis.


[23]   Next, Mother argues that the trial court erred by finding that termination is in

       Child’s best interests. Again, we note that throughout the nearly two years of

       the CHINS and termination cases, Mother continued to abuse illegal drugs,

       commit crimes, and refrain from appropriate participation in court-ordered

       services. She also failed to participate regularly in her visits with Child, and

       when she did attend, the visitation supervisor was often concerned that Mother

       was under the influence. Child is placed in a loving and appropriate

       preadoptive home where she is thriving. Under these circumstances, the trial

       court did not err by finding that DCS proved by clear and convincing evidence

       that termination is in Child’s best interests.


                                                 III. Father
[24]   Father raises the same arguments: DCS failed to prove by clear and convincing

       evidence that (1) there is a reasonable probability that the conditions that

       resulted in Child’s removal or the reasons for placement outside the home of

       the parents will not be remedied; and (2) termination is in Child’s best interests.


[25]   Turning to the first argument, we note that the reason resulting in Child’s initial

       removal from Father’s care and custody was Father’s incarceration. The

       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 12 of 14
reasons for Child’s continued placement outside of Father’s care and custody

include Father’s failure to attend all visits with Child, failure to keep in touch

with DCS or the trial court when not incarcerated, and new incarceration and

conviction for possession of methamphetamine. In support of its conclusion

that DCS met its burden of proving this statutory element, the trial court found

the following facts:


     Father has been incarcerated for most of Child’s life. He was
      incarcerated when she was born, and again became incarcerated during
      the CHINS case after he possessed methamphetamine.
     Father has only met Child on two occasions in her entire life.
     Father has no job and no home.

We acknowledge that Father has participated in multiple programs while

incarcerated. But that, in and of itself, does not establish a reasonable

probability that the conditions that led to Child’s removal will be remedied. To

the contrary, after Child was born, Father committed a new criminal offense,

leading to yet another incarceration. Moreover, Father was released between

November 2015 and April 2016. He attended only two visits in December 2015

and did not see Child again even though he was free to do so. Additionally,

during the time he was not incarcerated, he did not remain in touch with DCS

or the trial court and did not participate in court-ordered services. Under these

circumstances, we find that the trial court did not err by concluding that DCS

proved by clear and convincing evidence that there is not a reasonable

probability that the reasons leading to Child’s removal from Father’s care and

custody will be remedied.


Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 13 of 14
[26]   Finally, Father argues that the trial court erred by determining that termination

       is in Child’s best interests. The trial court noted that Child has spent virtually

       no time with Father as the result of his repeated incarcerations and his

       abandonment of Child when released. Indeed, Father is a stranger to Child.

       But she has spent the majority of her life with a loving and supportive

       preadoptive family. Given these facts, we find that the trial court did not err by

       concluding that DCS proved by clear and convincing evidence that termination

       is in Child’s best interests.


[27]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-911 | October 3, 2016   Page 14 of 14
