MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing                        Feb 07 2019, 8:42 am
the defense of res judicata, collateral                                  CLERK
estoppel, or the law of the case.                                    Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Benjamin J. Church                                        Curtis T. Hill, Jr.
Church Law Office                                         Attorney General of Indiana
Monticello, Indiana
                                                          Matthew Michaloski
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 7, 2019
of the Parent–Child Relationship                          Court of Appeals Case No.
of J.L. (Minor Child)                                     18A-JT-1918
and                                                       Appeal from the White Circuit
                                                          Court
C.H. (Mother),
                                                          The Honorable Robert W.
Appellant-Respondent,                                     Thacker, Judge

        v.                                                Trial Court Cause No.
                                                          91C01-1712-JT-29

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1918 | February 7, 2019             Page 1 of 9
      Bradford, Judge.



                                               Case Summary
[1]   C.H. (“Mother”) is the biological parent of J.L. (“Child”).1 In 2016, at

      approximately four months old, Child was placed in the care of his great aunt

      and adjudicated to be a child in need of services (“CHINS”) due to Mother’s

      continuous drug use. In December of 2017, the Department of Child Services

      (“DCS”) petitioned for the termination of Mother’s parental rights, after she

      failed, inter alia, to refrain from using controlled substances. On July 20, 2018,

      the juvenile court ordered that Mother’s parental rights in Child be terminated.

      Mother contends that the evidence was insufficient to sustain the termination of

      her parental rights. Because we disagree, we affirm.



                                Facts and Procedural History
[2]   Mother is the biological parent of Child (born April 21, 2016). After admittance

      into the hospital for the birth of Child, Mother tested positive for amphetamine

      and marijuana, and Child tested positive for methamphetamine and

      amphetamine following his delivery. Mother admitted to using

      methamphetamine, marijuana, and unprescribed Adderall while pregnant with

      Child. Child was initially placed in-home with Mother and Child’s great aunt.




      1
          Father’s parental rights in Child were also terminated; however, he does not appeal the termination.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1918 | February 7, 2019                     Page 2 of 9
      On June 7, 2016, DCS filed a petition requesting that the juvenile court find

      Child to be a CHINS. On August 29, 2016, and August 31, 2016, Mother tested

      positive for methamphetamine and amphetamine, and Child was removed on

      an emergency basis from Mother’s care and placed in his great aunt’s care. On

      September 22, 2016, the juvenile court found Child to be a CHINS and ordered

      Mother to refrain from using controlled substances, complete random drug

      screens, secure a legal source of income, maintain stable housing, and

      participate in supervised visitations.


[3]   Following the CHINS adjudication, Mother’s drug use continued. She tested

      positive for fentanyl in October of 2017 and for methamphetamine and

      amphetamine in February of 2018, while avoiding DCS’s other attempts to

      conduct drug screens, stating, “I wasn’t gonna go in the DCS office and take a

      drug screen knowing that I’m gonna fail.” Tr. Vol. II p. 182. In March of 2017,

      DCS conducted a family team meeting to discuss the possibility of overnight

      visitation, but it was of no avail after Mother refused to participate in required

      drug screening. In January of 2018, Mother was charged with unlawful

      possession of a syringe, and when Family Case Manager Melissa Barret (“FCM

      Barret”) suggested Mother participate in an inpatient detoxification program,

      Mother responded irately that she did not have an addiction problem. Mother

      acknowledged at the May 2018 termination hearing, however, that she had

      been “using drugs for the majority of [her] life” and that her addiction had

      become “full-blown” and “un-manageable.” Tr. Vol. II p. 134. Mother

      regularly missed visits with Child, at one point missing six of twelve visits.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1918 | February 7, 2019   Page 3 of 9
      Mother last saw Child in October of 2017, and he has no memory of her. On

      December 28, 2017, DCS petitioned for the termination of Mother’s parental

      rights and an evidentiary hearing was held by the juvenile court on May 17,

      2018.


[4]   During the evidentiary hearing, Mother testified that she had been participating

      in a residential drug-treatment program in California since March of 2018. She

      acknowledged that she had only been employed a few months since resigning

      from her job in 2016 and did not make enough money to support herself or

      Child. Mother also testified that she was uncertain as to where she would live

      or work once she returned to Indiana following her completion of drug

      treatment.


[5]   FCM Barrett testified that termination of Mother’s parental rights was in the

      Child’s best interests. Guardian ad Litem Rebecca Trent (“GAL Trent”) also

      testified that termination of Mother’s parental rights was in Child’s best

      interests. GAL Trent opined that


              based on the way [Mother] testified today, I’m not seeing enough
              internalization or recognition of her faults or growth in her um,
              that makes me think that there’s going to be a major change in
              progress going forward [a]t any time that would be relevant for
              [Child’s] ability to be back with her.


      Tr. Vol. II p. 190. On July 20, 2018, the juvenile court ordered that Mother’s

      parental rights be terminated. In doing so, the juvenile court concluded that the

      condition that resulted in Child’s removal would not be remedied.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1918 | February 7, 2019   Page 4 of 9
                                 Discussion and Decision
[6]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The

      parent–child relationship is “one of the most valued relationships in our

      culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.

      2003) (internal citations omitted). Parental rights, however, are not absolute

      and must be subordinated to the child’s interests when determining the proper

      disposition of a petition to terminate the parent–child relationship. Bester, 839

      N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their

      parental responsibilities their rights may be terminated. Id.


[7]   In reviewing the termination of parental rights on appeal, we neither reweigh

      the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

      Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

      We consider only the evidence and reasonable inferences therefrom which are

      most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

      court has entered findings of facts and conclusions of law, our standard of

      review is two-tiered. Id. First, we determine whether the evidence supports the

      factual findings, and second, whether the factual findings support the judgment.

      Id. The juvenile court’s findings and judgment will only be set aside if found to

      be clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

      drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

      2005). “A judgment is clearly erroneous if the findings do not support the

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1918 | February 7, 2019   Page 5 of 9
      juvenile court’s conclusions or the conclusions do not support the judgment.”

      Id.


[8]   Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

      support a termination of parental rights. Of relevance to this case, DCS was

      required to establish by clear and convincing evidence


                       (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.

                               […]

                       (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 interest 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).




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1918 | February 7, 2019   Page 6 of 9
[9]    It is not disputed that Child had been removed from Mother and placed with

       his great aunt for at least six months under a dispositional decree, termination

       was in the best interests of Child, and that there was a satisfactory plan for the

       care and treatment of Child, all required findings pursuant to Indiana Code

       section 31-35-2-4(b)(2). However, Mother contends that the juvenile court erred

       by concluding that the condition that resulted in the removal of Child from her

       care would not be remedied.


[10]           In determining whether the conditions that resulted in the
               child[ren]’s removal…will not be remedied, we engage in a two-
               step analysis[.] 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. In the
               second step, the trial court must judge a parent’s fitness as of the
               time of the termination proceeding, taking into consideration
               evidence of changed conditions—balancing a parent’s recent
               improvements against habitual pattern[s] of conduct to determine
               whether there is a substantial probability of future neglect or
               deprivation. We entrust that delicate balance to the trial court,
               which has discretion to weigh a parent’s prior history more
               heavily than efforts made only shortly before termination.
               Requiring trial courts to give due regard to changed conditions
               does not preclude them from finding that parents’ past behavior
               is the best predictor of their future behavior.


       In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (internal citations,

       quotations, and footnote omitted, first and third set of brackets in

       original, second set added).



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1918 | February 7, 2019   Page 7 of 9
[11]   Mother challenges the sufficiency of the evidence to prove that the reason for

       Child’s removal from her care will not be remedied. The condition that led to

       Child’s removal was Mother’s substance abuse. DCS produced ample evidence

       to establish a reasonable probability that this condition would not be remedied.

       Mother tested positive for fentanyl in October of 2017 and for

       methamphetamine and amphetamine in February of 2018. She admitted to

       avoiding other drug screening because she wasn’t going to take drug screens

       that she knew she was going to fail. Moreover, in March of 2017, when

       approached about the possibility of having overnight visitation with Child,

       Mother effectively declined the opportunity by refusing to submit to required

       drug screening, presumably, because she knew that she would test positive for

       controlled substances. Eventually, Mother’s substance abuse placed her into the

       criminal justice system after she was charged with unlawful possession of a

       syringe. In January of 2018, when FCM Barret suggested to Mother that she go

       through a detoxification treatment to overcome her substance abuse issues,

       Mother angrily denied her addiction.


[12]   In sum, we agree with Mother that her substance abuse had become “full-

       blown.” Mother points to her testimony that she had been participating in

       residential drug treatment for nearly two months prior to the termination

       hearing and that she planned to remain sober upon completion of said program.

       The juvenile court, however, was under no obligation to credit Mother’s

       testimony and apparently did not. Moreover, the juvenile court was entitled to

       conclude that Mother would not maintain sobriety long-term. Mother has been


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1918 | February 7, 2019   Page 8 of 9
       addicted to controlled substances a majority of her life, and her substance abuse

       has become unmanageable. Therefore, the juvenile court did not abuse its

       discretion by concluding that Mother’s substance abuse which led to Child’s

       removal would not be remedied.2


[13]   The judgment of the juvenile court is affirmed.


       Bailey, J., and Brown, J., concur.




       2
        Mother also claims that DCS failed to prove by clear and convincing evidence that she posed a threat to
       Child’s well-being. See Appellant’s Br. p. 6. However, because we find Ind. Code § 31-35-2-4(b)(2)(B)(i)
       dispositive in this matter, we need not address her claim.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1918 | February 7, 2019                 Page 9 of 9
