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 2017, 9:55 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                        Curtis T. Hill, Jr.
Greenwood, Indiana                                        Attorney General of Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 28, 2017
of the Parent-Child Relationship                          Court of Appeals Case No.
of:                                                       79A05-1608-JT-1763
C.K. (a minor child), and                                 Appeal from the Tippecanoe
E.K. (mother),                                            Superior Court
                                                          The Honorable Thomas K.
Appellant-Respondent,
                                                          Milligan, Senior Judge
        v.                                                Trial Court Cause No.
                                                          79D03-1602-JT-8
The Indiana Department of
Child Services,
Appellee-Petitioner.




Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017   Page 1 of 11
                                        Statement of the Case
[1]   E.K. (“Mother”) appeals the termination of the parent-child relationship with

      her son, C.K. (“C.K.”), claiming that the Department of Child Services

      (“DCS”) failed to prove by clear and convincing evidence that: (1) there is a

      reasonable probability that the conditions that resulted in C.K.’s removal or the

      reasons for placement outside Mother’s home will not be remedied; (2) a

      continuation of the parent-child relationship poses a threat to C.K.’s well-being;

      and (3) termination of the parent-child relationship is in C.K.’s best interests.

      Concluding that there is sufficient evidence to support the trial court’s decision

      to terminate the parent-child relationship, we affirm the trial court’s judgment.


[2]   We affirm.


                                                       Issue1
              Whether there is sufficient evidence to support the termination of
              the parent-child relationship.


                                                       Facts
[3]   In January and February 2015, DCS received reports that Mother: (1) had left

      three children, including one-year-old C.K., in a running car for over an hour;

      (2) used heroin daily with three men who lived in her home; (3) sold heroin;

      and (4) was the victim of domestic violence. Also during that time, Mother




      1
       Mother also argues that the trial court erred in denying her motion for a continuance. However, our review
      of the transcript and appendix reveals that no such motion was filed. We therefore find no error.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017       Page 2 of 11
      tested positive for amphetamine and methamphetamine. In February 2015,

      DCS removed C.K. from Mother’s care and filed a petition alleging that he was

      a child in need of services (“CHINS”). Following a hearing, the trial court

      adjudicated C.K. to be a CHINS in April 2015. The trial court ordered Mother

      to participate in a substance abuse assessment and to follow all

      recommendations. The court also ordered Mother to participate in a domestic

      violence group and to submit to random urine drug screens. In addition, the

      trial court ordered Mother not to use or possess any illegal drugs or alcohol.


[4]   Mother participated in substance abuse assessments in March and April 2015.

      The report of the first assessment noted that Mother appeared to minimize her

      substance abuse. Following the assessment, DCS referred Mother to an

      intensive outpatient (“IOP”) drug treatment program, which conflicted with

      Mother’s work schedule. DCS then referred Mother to individual counseling to

      accommodate her schedule. Mother continued to deny using illegal drugs even

      though she tested positive for methamphetamine in May 2015. That same

      month, Mother was charged with Level 6 felony theft and Level 6 felony

      possession of heroin. She pled guilty to both counts.


[5]   Mother also minimized the nature of the domestic violence between herself and

      Father. Although she had initially told DCS that Father was violent and had

      choked, shoved, stalked, and physically abused her, Mother allowed Father to

      return to live with her in the summer of 2015 despite a no-contact order. After

      Father moved back in with Mother, her drug use escalated. In July 2015, the

      trial court found Mother in contempt for testing positive for amphetamine,

      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017   Page 3 of 11
      methamphetamine, and morphine. The trial court suspended a sentence of

      incarceration on the condition that Mother remained drug and alcohol free and

      immediately enrolled in an IOP drug treatment program. That same month,

      Mother was charged with Class A misdemeanor trespass. She pled guilty to

      that offense as well.


[6]   In September 2015, Mother was charged with Level 6 felony neglect of a

      dependent for leaving C.K. in the running car for an hour in January 2015. She

      pled guilty and was sentenced to two years, with one year executed and one

      year suspended to supervised probation. As part of her sentence, Mother was

      also ordered to complete substance abuse and mental health evaluations and to

      follow all orders in her CHINS case.


[7]   Also in September 2015, Mother tested positive for heroin on two separate

      occasions. After the two positive results in September, Mother began to miss

      her drug screens. In October 2015, the trial court found Mother in contempt for

      a second time for failing to remain drug free and submit to random drug

      screens. The trial court sentenced her to fifteen days in jail and work release.

      Methamphetamine was found in Mother’s garage in November 2015. Mother

      was hospitalized for a drug overdose in December 2015, and in January 2016,

      Mother was incarcerated because she had violated her probation by using

      drugs.


[8]   DCS filed a petition to terminate both parents’ parental rights in February 2016.

      At the April 2016 termination hearing, DCS Family Case Manager Ashley


      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017   Page 4 of 11
      Weinkauff (“Case Manager Weinkauff”) testified that C.K. had been removed

      from Mother because of Mother’s substance abuse and domestic violence

      issues. Case Manager Weinkauff testified that it was not likely that the reasons

      for C.K.’s removal would be remedied. Specifically, the case manager

      explained that the “same thing that [she had] said over is the repetitive pattern

      from both parents with their criminal involvement, the substance use . . . their

      volatile relationship that they have been back and forth with the whole case.”

      (Tr. 206). The case manager further explained that Mother had failed to

      acknowledge “the severity of her substance use,” and had failed to make “any

      progress dealing with her substance abuse issues.” (Tr. 203, 226). Case

      Manager Weinkauff admitted that Mother had exhibited good parenting skills

      but nevertheless testified that termination was in C.K.’s best interests. The case

      manager further pointed out that Mother had not participated in the court-

      ordered domestic violence group.


[9]   CASA Stan Kappes (“CASA Kappes”) testified that C.K. had been removed

      from Mother because of her drug use and domestic violence issues. He further

      testified that the reasons for C.K.’s removal had not been remedied and that her

      patterns of conduct revealed that Mother could not remedy them. According to

      CASA Kappes, it was substance abuse that was “holding her back.” (Tr. 23).

      CASA Kappes also testified that he was concerned that Mother had not

      completed a substance abuse program. Lastly, the CASA testified that

      termination was in C.K.’s best interests because “[i]t [had] been 15 months and

      [C.K.] deserve[d] some stability.” (Vol. 2 Tr. 14). The CASA’s written report


      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017   Page 5 of 11
       also provided that Mother’s “addictions seem[ed] to override her better

       judgment and even though she ha[d] shown a lot of good parenting skills, she

       ha[d] not shown it in her total actions. Her drug use and associations put

       [C.K.] in danger.” (CASA Ex. 1 at 3).


[10]   Mother testified that she had always been employed and had housing. She also

       testified that she had been financially supporting C.K. while he was in

       placement with his paternal aunt and that she had talked to him every day.


[11]   Following the hearing, the trial court issued an order that provides in relevant

       part as follows:

                                             Conclusions of Law


               1. The Court further finds that there is a reasonable probability
               that the conditions which resulted in the removal of the child will
               not be remedied and the reasons for the placement outside of the
               parent’s home will not be remedied. To support this conclusion,
               the Court cites to the parent’s history of drug use which is serious
               involving heroin, methadone, methamphetamine,
               amphetamines, as well as opiates such as oxycontin, and
               hydrocodone. The parents have been offered services to address
               those drug issues[.] [T]hey have failed and refused to take
               advantage of those services and the Court believes given their
               history, they will not readily agree to significantly and
               intentionally and purposely address those issues. The Court
               would also point [to] the domestic violence issues which the
               parents engaged in. Specifically, the Father’s abuse of Mother
               physically, mentally, and emotionally and the parties resistance
               to the parties entering into services that would address those
               issues on any substantive level. . . .


       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017   Page 6 of 11
[12]   (App. 18). The trial court terminated the parental rights of both Mother and

       Father. Mother now appeals. 2


                                                     Decision
[13]   Mother argues that there is insufficient evidence to support the termination of

       her parental rights. The Fourteenth Amendment to the United States

       Constitution protects the traditional right of parents to establish a home and

       raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,

       the law provides for termination of that right when parents are unwilling or

       unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147

       (Ind. 2005). The purpose of terminating parental rights is not to punish the

       parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

       App. 1999), trans. denied.


[14]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly




       2
        Father filed a notice of appeal in August 2016. However, one month later, he filed a motion to dismiss the
       appeal. This Court granted Father’s motion and dismissed his appeal with prejudice.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017        Page 7 of 11
       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[15]   A petition to terminate parental rights must allege:


               (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.

       IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[16]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she contends that the evidence

       is insufficient to show that there is a reasonable probability that: (1) the

       conditions that resulted in C.K.’s removal or the reasons for placement outside




       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017   Page 8 of 11
       the parent’s home will not be remedied; and (2) a continuation of the parent-

       child relationships poses a threat to C.K.’s well-being.


[17]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in C.K.’s removal or

       the reasons for her placement outside Mother’s home will not be remedied.


[18]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).

       The trial court may also consider services offered to the parent by DCS and the

       parent’s response to those services as evidence of whether conditions will be

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017   Page 9 of 11
       remedied. Id. Requiring trial courts to give due regard to changed conditions

       does not preclude them from finding that a parent’s past behavior is the best

       predictor of her future behavior. E.M., 4 N.E.3d at 643.


[19]   Here, our review of the evidence reveals that C.K. was removed from Mother’s

       home because of Mother’s drug use and domestic violence issues. Both the case

       manager and the CASA testified that these reasons for C.K.’s removal had not

       been remedied. Following C.K.’s removal, Mother continued to use illegal

       drugs such as heroin, amphetamine, and methamphetamine. She failed to

       participate in a court-ordered domestic violence group and allowed Father to

       return to live with her despite a no-contact order. After Father moved back in

       with Mother, her drug use escalated. This evidence supports the trial court’s

       conclusion that there was a reasonable probability that the conditions that

       resulted in C.K.’s removal would not be remedied. We find no error.


[20]   Mother also argues that there is insufficient evidence that the termination was

       in C.K.’s best interests. 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. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied. In so doing, the court must subordinate the interests of the parents to

       those of the child involved. Id. Termination of the parent-child relationship is

       proper where the child’s emotional and physical development is threatened. In

       re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court

       need not wait until the child is irreversibly harmed such that his physical,

       mental, and social development is permanently impaired before terminating the

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017   Page 10 of 11
       parent-child relationship. In addition, a child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

       may support a finding that termination is in the child’s best interests. McBride v.

       Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[21]   Here, our review of the evidence reveals that CASA Kappes testified that

       termination was in C.K.’s best interests because C.K. deserved stability after

       fifteen months. Case Manager Weinkauff also testified that termination was in

       C.K.’s best interests. The testimony of these service providers, as well as the

       other evidence previously discussed, supports the trial court’s conclusion that

       termination was in C.K.’s best interests.


[22]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[23]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017   Page 11 of 11
