MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
                                                                              Jun 06 2018, 8:56 am
regarded as precedent or cited before any
court except for the purpose of establishing                                      CLERK
                                                                              Indiana Supreme Court
the defense of res judicata, collateral                                          Court of Appeals
                                                                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cynthia Phillips Smith                                    Curtis T. Hill, Jr.
Law Office of Cynthia P. Smith                            Attorney General of Indiana
Lafayette, Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 6, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of: A.J. and N.J. (Minor                                  18A-JT-130
Children):                                                Appeal from the Tippecanoe
L.H. (Mother),                                            Superior Court
                                                          The Honorable Faith A. Graham,
Appellant-Respondent,
                                                          Judge
        v.                                                The Honorable Tricia L.
                                                          Thompson, Juvenile Magistrate
Indiana Department of Child                               Trial Court Cause Nos.
Services,                                                 79D03-1707-JT-67
                                                          79D03-1707-JT-68
Appellee-Petitioner.



Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018                           Page 1 of 15
                                        Statement of the Case
[1]   L.H. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor children N.J. and A.J. (“the Children”). Mother presents a single

      issue for our review, namely, whether the State presented sufficient evidence to

      support the termination of her parental rights. We affirm.


                                  Facts and Procedural History
[2]   Mother and M.J. (“Father”) were unwed teenagers when N.J. was born in 2011

      and when A.J. was born in 2013. On March 29, 2015, someone contacted the

      Indiana Department of Child Services (“DCS”) to report that Father had

      physically abused a girlfriend’s (not Mother’s) eighteen-month-old child while

      he was under the influence of synthetic marijuana and alcohol. Father had left

      the scene with the Children, but they were later found. Father was arrested and

      the Children were transported to a local hospital for well-child checks.

      Mother’s whereabouts at that time were unknown. Accordingly, DCS took the

      Children into custody. Thereafter, DCS filed petitions alleging that the

      Children were children in need of services (“CHINS”). After Mother and

      Father failed to fully comply with services, on July 26, 2017, DCS filed

      petitions to terminate their parental rights over the Children.


[3]   Following a hearing, the trial court granted the petitions on July 27, 2017. In

      support of its order, the trial court entered the following findings and

      conclusions:


              FINDINGS OF FACT

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 2 of 15
        1. [L.H.] (DOB 2/13/1997) is the Mother and [M.J.] (DOB
        6/11/1995) is the Father of [N.J.] (DOB 7/24/2011) and [A.J.
        (DOB 10/22/2013).

        2. Tippecanoe County Department of Child Services (“DCS”)
        received a report on March 29, 2015[,] alleging that Father
        physically abused a minor child and had left the scene with his
        two minor children. Father was believed to be under the
        influence of synthetic marijuana and alcohol.

        3. Investigation revealed that the eighteen (18) month old child of
        Father’s girlfriend was taken to the emergency room due to
        multiple contusions all over his head and swelling in several
        areas. The child’s injuries were not consistent with Father’s
        explanation and Father was arrested for Battery on a Child.
        Father was on probation at the time for Battery with a Deadly
        Weapon. [N.J. and A.J.] were taken to the hospital for a well
        child check. They had dirt caked on their feet and hands and had
        moderate diaper rash. The children were bathed at the hospital
        due to their condition. [N.J.] became fearful and yelled “dildo”
        when her diaper was changed. A drug screen on [A.J.] returned
        positive for marijuana. Mother was not able to be located and
        was believed to be homeless at the time. Once Mother was
        located, Mother tested positive for marijuana. The children were
        taken into custody on March 29, 2015.

        4. DCS filed Children in Need of Services (“CHINS”) petitions
        and a Detention Hearing and Initial Hearing were held on March
        30, 2015. At that time, Father remained in custody of the
        Tippecanoe County Sheriff’s Department and Mother had not
        been located. A CASA was appointed to represent the best
        interests of the children. The children were adjudicated CHINS
        and dispositional orders were issued on June 12, 2015. The
        children have remained out of the home continuously since that
        date.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 3 of 15
        5. Pursuant to dispositional orders, Mother was offered the
        following services: case management, mental health assessment,
        domestic violence assessment, drug screens, and parenting time.
        Additional services were later offered including psychological
        evaluation, individual therapy, medication evaluation, parenting
        education, and transportation assistance. Pursuant to
        dispositional orders, Father was offered the following services:
        case management, mental health assessment, domestic violence
        assessment, and parenting time once the no contact order was
        lifted. Father has remained incarcerated for the entire CHINS
        case and his incarceration has limited his ability to participate in
        services. These services were exhaustive and were designed to
        address the parents’ difficulties.

        6. Case conferences, family team meetings, and review hearings
        were held periodically. DCS and CASA prepared separate
        written reports and recommendations prior to each hearing.

        7. A permanency hearing was held on August 31, 2016[,] at
        which time the permanent plan was determined to be initiation of
        proceedings for termination of parental rights. DCS filed
        petitions to terminate. However, the Court denied the petitions
        to terminate on January 6, 2017[,] and efforts at reunification
        were continued. Another permanency hearing was held on May
        22, 2017[,] at which time the permanent plan was determined to
        be initiation of proceedings for termination of parental rights.
        Mother failed to appear at said hearing. DCS filed its petitions in
        the above-referenced Cause Nos. on July 26, 2017. The
        evidentiary hearing on the Verified Petitions to Terminate
        Parental Rights was held on September 6, 2017. Father appeared
        by telephone due to his incarceration and Mother failed to appear
        for the hearing.

        8. Mother is very young, lacks a support system, and has a
        history of instability with housing and employment. Mother was
        eighteen (18) years old when the CHINS case was initiated.
        Mother became pregnant with [N.J.] when she was thirteen (13)

Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 4 of 15
        years old and then became pregnant with [A.J.] when she was
        fifteen (15) years old. Mother did not graduate from high school.

        9. Mother was provided case management services to assist with
        obtaining stable housing, employment, and connecting to other
        resources. Despite some periods of compliance and
        participation, Mother failed to make significant progress toward
        any of the goals of case management. After the first termination
        proceeding, Mother was discharged from multiple providers for
        missed sessions.

        10. Mother has been employed primarily at fast food restaurants
        and at factories through staffing agencies. Mother’s longest
        employment was at McDonalds for eight (8) months. During the
        CHINS case, Mother was employed at Park 100 Foods from
        March to April of 2016. Mother worked at Dairy Queen but left
        in January of 2017 after maternity leave. Mother started a new
        job at the end of April of 2017, but quit after only two (2) weeks.
        Mother reported new employment at a nursing home in May of
        2017 but no verification was ever provided.

        11. Mother primarily lived with Maternal Grandmother
        throughout most of the CHINS case. Maternal Grandmother
        has a history of inappropriate boyfriends and drug abuse,
        specifically crack cocaine. Maternal Grandmother’s home is not
        appropriate for reunification with the children and Mother failed
        to maintain independent housing. Although Mother briefly
        obtained her own apartment in subsidized housing, she was
        evicted in May of 2017. Mother is no longer eligible for
        subsidized housing and is again living with Maternal
        Grandmother.

        12. Mother completed a clinical assessment in July of 2015 with
        a diagnosis of Adjustment Disorder with Mixed Anxiety and
        Depressed Mood, ADHD (by history) and Cannabis Abuse.
        Mother completed a psychological evaluation in May of 2016
        and was diagnosed with ADHD, Generalized Anxiety Disorder

Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 5 of 15
        (in remission) and marijuana use disorder (in sustained
        remission). It was recommended that Mother participate in
        individual therapy and a medication evaluation.

        13. Mother participated in approximately four (4) therapy
        sessions from February of 2016 until August of 2016 at Howard
        Regional Health. Mother then began participating in therapy at
        KidPsych, Inc. in September of 2016. Mother was attending
        therapy well and making progress as of November 7, 2016.
        Mother informed DCS in February of 2017 and again in May of
        2017 that she was no longer participating in therapy. KidPsych is
        not a contracted DCS provider and DCS has received no reports
        from the therapist to indicate that Mother has returned to
        therapy.

        14. At the beginning of the CHINS case, Mother tested positive
        for marijuana. Mother began using marijuana at the age of
        sixteen (16) and used daily until March of 2015. Mother tested
        positive for marijuana again on August 16, 2017 and August 29,
        2017. Mother also tested positive for alcohol on March 21,
        2016[,] then again on February 17, 2017, February 21, 2017,
        March 16, 2017, and March 30, 2017. Additionally, Mother
        failed to submit to multiple screens in 2017.

        15. Although there were no safety concerns during visits that
        Mother attended and Mother interacted with the children
        appropriately, Mother’s attendance at visits was inconsistent.
        After the first termination proceeding, Mother started visits with
        Lifeline in January of 2017 and was discharged in February of
        2017 having attended only six (6) of the nine (9) scheduled visits.
        Mother’s visits were in home and semi-supervised at that time.
        Mother resumed visits with Just Do It (JDI) in April of 2017,
        also semi-supervised in Mother’s apartment until Mother was
        evicted at which time visits became fully supervised in the
        community. Mother demonstrated a pattern of disappearing a
        few weeks at a time then contacting the visit provider with a new


Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 6 of 15
        telephone number. Mother missed multiple visits during these
        disappearances. Mother attended only sixteen (16) of the
        forty-two (42) visits between April 4, 2017[,] and September 6,
        2017. When Mother missed visits, the children were upset and
        cried. At the time of the evidentiary hearing, Mother had not
        seen the children for almost one (1) month.

        16. During the CHINS case, Mother gave birth to two (2)
        children. Mother was in a relationship with the father of the first
        subsequent child for approximately one (1) year but did not know
        how to spell his name. Mother indicated she ended this
        relationship because he was a marijuana dealer. The father of the
        second subsequent child is [D.B.] Mother and [D.B.] were both
        arrested for domestic violence in March of 2016 although the
        charges against Mother were later dismissed.

        17. Howard County DCS received a report regarding Mother’s
        subsequent born children and conducted an assessment in
        December of 2016. Although [D.B.] tested positive for
        marijuana, no action was taken at that time. At the time of the
        evidentiary hearing, Howard County DCS was conducting
        another assessment for a new report of neglect and substance
        abuse in Mother’s home.

        18. Mother has acknowledged childhood exposure to domestic
        violence including one of Maternal Grandmother’s boyfriends
        who burned down their house. Mother has also acknowledged
        her own pattern of violent relationships including her
        relationship with [D.B.] Nevertheless, Mother married [D.B.] on
        May 3, 2017[,] and was dishonest with DCS about the marriage.

                                                ***

        23. CASA, Charles Stewart, supports termination of parental
        rights in the best interests of the child. CASA observed that the
        case has been open for over two (2) years and has regressed since


Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 7 of 15
        December of 2016. CASA noted that Mother’s participation in
        services has been limited. Mother was evicted, quit her job,
        tested positive for marijuana, missed multiple drug screens,
        missed multiple court dates, married her violent boyfriend, and
        failed to communicate with DCS, CASA, and service providers.
        The children have been in foster care over two (2) years with no
        end in sight. CASA believes the children should not have to wait
        longer for permanency.

        24. On September 6, 2017, the day of the evidentiary hearing on
        the termination petitions, the children had been removed from
        the care of the parents for eight hundred ninety-two (892) days,
        over two (2) years and five (5) months. The children need
        permanency and neither parent can provide that for the children.
        All imaginable services have been offered and nothing is
        singularly different in today’s circumstances since the time of
        removal. Mother does not have stable housing or the ability to
        provide a stable home for the children. Mother continues to
        choose violent relationships. Father remains incarcerated for
        physical abuse of a child. To continue the parent[-]child
        relationships would be detrimental to the children.

        CONCLUSIONS OF LAW

        1. There is a reasonable probability the conditions that resulted in
        removal of the children from the home or the reasons for
        continued placement outside the home will not be remedied.
        There is no reasonable probability that either parent will be able
        to provide adequately for the children.

        2. Continuation of the parent-child relationships poses a threat to
        the well-being of the children. The children need stability in life.
        The Children need parents with whom the children can form
        permanent and lasting bonds to provide for the children’s
        emotional and psychological as well as physical well-being. The
        children’s well-being would be threatened by keeping the children
        in parent-child relationships with either parent.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 8 of 15
                 3. DCS has a satisfactory plan of adoption for the care and
                 treatment of the children following termination of parental rights.
                 The children can be adopted and there is reason to believe an
                 appropriate permanent home has or can be found for the
                 children.

                 4. For the foregoing reasons, it is in the best interests of [the
                 Children] that the parental rights of [Mother] and [Father] be
                 terminated.

                 Court grants Verified Petition to Terminate Parental Rights of
                 [Mother].

                 It is ORDERED that the parent-child relationship(s) between
                 [Mother] and [the Children] be, and the same is hereby,
                 involuntarily terminated. All rights, powers, privileges,
                 immunities, duties and obligations (including the right to consent
                 to adoption) pertaining to such relationship(s) are permanently
                 terminated.


      Appellant’s App. Vol. II at 12-16. This appeal ensued.1


                                          Discussion and Decision
[4]   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 Fam. & Child. (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




      1
          Father does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018    Page 9 of 15
      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (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.


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

      is required to allege and prove:


              (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) 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.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 10 of 15
      Ind. Code § 31-35-2-4(b)(2) (2018). 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).


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

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

      Fam. & Child. (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

      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 Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

      Ct. App. 1999), trans. denied.


[7]   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 Cty. Off. of Fam. & Child., 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.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 11 of 15
[8]   On appeal, Mother contends that the trial court erred when it concluded that:

      the conditions that resulted in the Children’s removal and the reasons for their

      placement outside of Mother’s home will not be remedied; there is a reasonable

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

      to the well-being of the Children; and termination is in the Children’s best

      interests. Because the statute is written in the disjunctive, we need not address

      the court’s conclusion that continuation of the parent-child relationship poses a

      threat to the Children’s well-being. I.C. § 31-35-2-4(b)(2).


         Conditions that Resulted in the Children’s Removal will not be Remedied

[9]   In determining whether the evidence supports the trial court’s finding that

      Mother is unlikely to remedy the reasons for the Children’s removal, we engage

      in a two-step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d

      636, 643 (Ind. 2014). “First, we identify the conditions that led to removal; and

      second, we determine whether there is a reasonable probability that those

      conditions will not be remedied.” Id. (quotations and citations omitted). In the

      second step, the trial court must judge a parent’s fitness to care for his children

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

      changed conditions. Id. However, the court must also “evaluate the parent’s

      habitual patterns of conduct to determine the probability of future neglect or

      deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d

      218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted). Pursuant to

      this rule, courts have properly considered evidence of a parent’s prior criminal

      history, drug and alcohol abuse, history of neglect, failure to provide support,

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 12 of 15
       and lack of adequate housing and employment. Id. Moreover, DCS is not

       required to rule out all possibilities of change; rather, it need establish only that

       there is a reasonable probability the parent’s behavior will not change. Id.


[10]   Mother does not challenge the trial court’s findings on this issue, and we cannot

       say that the trial court clearly erred when it concluded from those findings that

       the conditions that resulted in the Children’s removal will not be remedied.

       The Children were removed from Father and Mother’s care due to Father’s

       arrest. At that time, DCS could not locate Mother, who was homeless, lacked

       stable employment, and abused marijuana. At the time of the termination

       hearing, Mother lacked stable housing and stable employment, and she

       continued to abuse marijuana.


[11]   In particular, as the trial court found, during the CHINS proceedings, Mother

       “primarily lived” with her grandmother, who had a “history of inappropriate

       boyfriends and drug abuse, specifically crack cocaine.” Appellant’s App. Vol.

       II at 13. Mother “briefly obtained her own subsidized housing” but she was

       “evicted in May of 2017” and resumed living with her grandmother. Id. As the

       trial court found, Mother’s grandmother’s home “is not appropriate for

       reunification with the [C]hildren.” Id. Mother has a pattern of quitting jobs

       after short stints of employment, and she continues to abuse marijuana, having

       tested positive a few weeks before the termination hearing. Finally, Mother

       married D.B., who has a history of domestic violence.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 13 of 15
[12]   Mother’s arguments on appeal simply seek to have this court disregard the

       evidence most favorable to the trial court’s judgment and instead reweigh the

       evidence in her favor, which we cannot do. We cannot say that the trial court

       clearly erred when it concluded that the conditions that resulted in the

       Children’s removal will not be remedied.


                                                  Best Interests

[13]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and

       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct.

       App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child.” In re A.K.,

       924 N.E.2d at 224.


[14]   Again, Mother does not challenge the trial court’s findings in support of this

       conclusion. Still, Mother contends that termination is not in the Children’s best

       interests because she has “made some strides in both her personal stability and

       her ability to parent her child[ren]” and she “is bonded to her children.”

       Appellant’s Br. at 16-17. Mother’s contentions on this issue amount to nothing

       more than a request that we reweigh the evidence, which, again, we cannot do.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 14 of 15
[15]   DCS presented evidence that in the months leading up to the termination

       hearing, Mother only attended sixteen out of the scheduled forty-two

       appointments to visit the Children. Mother had not seen the Children for over

       one month prior to the final hearing. In addition, Mother was unsuccessfully

       discharged from home-based services and family services, and she did not

       consistently participate in recommended individual therapy. The Children

       need consistent and reliable care, and they need permanency. Tasha Tolson,

       the DCS family case worker, testified that Mother “has less stability now” than

       when Mother first started services. Tr. at 31. In addition, the Children’s CASA

       testified that termination of Mother’s parental rights is in the Children’s best

       interests because “the case has gone on over two years and seems to be

       regressing seriously.” Id. at 39. The totality of the evidence, including

       Mother’s historical inability to provide a safe and stable home and her failure to

       comply with services, supports the trial court’s conclusion that termination of

       Mother’s parental rights is in the Children’s best interests.


[16]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-130 | June 6, 2018   Page 15 of 15
