                                                                          FILED
MEMORANDUM DECISION                                                   Mar 17 2016, 9:24 am


Pursuant to Ind. Appellate Rule 65(D),                                    CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
this Memorandum Decision shall not be                                      and Tax Court

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark Small                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

Cara Schaefer Wieneke                                    Robert J. Henke
Wieneke Law Office, LLC                                  David E. Corey
Brooklyn, Indiana                                        Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination Parent-Child                          March 17, 2016
Relationship of:                                         Court of Appeals Case No.
                                                         01A04-1509-JT-1330
M.O. and B.E.
   and                                                   Appeal from the Adams Circuit
                                                         Court
B.O. (Mother) and B.E. (Father),
                                                         The Honorable Chad E. Kukelhan,
Appellants-Respondents,                                  Judge

        v.                                               Trial Court Cause No.
                                                         01C01-1501-JT-1
                                                         01C01-1501-JT-2
The Indiana Department of
Child Services,
Appellee-Petitioner.

Bailey, Judge.



Court of Appeals of Indiana | Memorandum Decision 01A04-1509-JT-1330 | March 17, 2016         Page 1 of 10
                                          Case Summary
[1]   B.O. (“Mother”) and B.E. (“Father”) appeal the termination of their parental

      rights to M.O. and B.E. (“Children”), upon the petition of the Adams County

      Department of Child Services (“the DCS”). We affirm.



                                                    Issue
[2]   Mother and Father, who have submitted separate appellate briefs, present a

      single consolidated issue for review: Whether the DCS established, by clear

      and convincing evidence, the requisite statutory elements to support the

      termination decision.



                             Facts and Procedural History
[3]   On August 9, 2013, a fourteen-month-old child, later identified as B.O., was

      dropped off at the medical offices of Dr. Judge in Berne, Indiana. B.O. was

      experiencing seizures and was transported to Adams Memorial Hospital. As

      authorities attempted to identify and contact B.O.’s parents or guardian,

      Mother and Father appeared at Adams Memorial Hospital.


[4]   Family case manager Michelle Norman interviewed the parents. Father

      appeared to be under the influence of a stimulant while Mother had a flat affect

      and spoke little. When it was determined that Father was on probation

      following a conviction for dealing in cocaine, officers were dispatched to the




      Court of Appeals of Indiana | Memorandum Decision 01A04-1509-JT-1330 | March 17, 2016   Page 2 of 10
      parental residence. Inside the residence, officers found an object with

      methamphetamine residue together with drug paraphernalia.


[5]   Mother and Father submitted to drug screens. Father tested positive for

      methamphetamine and amphetamine. Mother, who was then eight months

      pregnant, tested positive for methamphetamine, methadone, and marijuana.1

      Both were placed under arrest. Mother was released, while Father remained

      incarcerated for a probation violation. Approximately five weeks later, Mother

      gave birth to M.O. The infant was found to have THC in her bloodstream, and

      was taken into DCS custody.


[6]   On November 26, 2013, Children were found to be Children in Need of

      Services (“CHINS”) and the parents were ordered to participate in services.

      Among other things, they were ordered to maintain suitable housing and

      income, contact the DCS weekly, refrain from drug use, undergo substance

      abuse assessment, attend pediatric appointments, and participate in home-based

      counseling. However, Father remained incarcerated. Mother participated in

      some services, but relapsed into drug use in June of 2014 and was again

      incarcerated.


[7]   On January 7, 2015, the DCS petitioned to terminate the parental rights of

      Mother and Father as to Children. An evidentiary hearing was conducted on




      1
       Mother had ingested what could, for an “average person,” be a lethal dose of methamphetamine. (Tr. at
      127.)

      Court of Appeals of Indiana | Memorandum Decision 01A04-1509-JT-1330 | March 17, 2016        Page 3 of 10
      June 22, 2015 and on June 26, 2015. By that time, Father had been convicted

      of Possession of Methamphetamine and Possession of Paraphernalia, and had

      been sentenced to six years of incarceration. He was also ordered to serve four

      years of a previously-suspended sentence for Dealing in Cocaine. His projected

      release date was October 28, 2018. Mother had been convicted of like offenses

      and sentenced to ten years, with six years suspended to probation. Her

      projected release date was December 31, 2016. Children were in a pre-adoptive

      placement with paternal relatives.


[8]   On August 5, 2015, the trial court entered its findings of fact, conclusions, and

      order. This appeal ensued.



                                 Discussion and Decision
                  Standard of Review – Sufficiency of the Evidence
[9]   In considering whether the termination of parental rights is appropriate, we give

      due regard to the trial court’s opportunity to judge the credibility of the

      witnesses firsthand. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229

      (Ind. 2013). This Court will not set aside the trial court’s judgment terminating

      a parent-child relationship unless it is clearly erroneous. Id. When reviewing

      the sufficiency of the evidence to support a judgment of involuntary termination

      of a parent-child relationship, we neither reweigh the evidence nor judge the

      credibility of the witnesses. Id. We consider only the evidence that supports the

      judgment and the reasonable inferences to be drawn therefrom. Id.



      Court of Appeals of Indiana | Memorandum Decision 01A04-1509-JT-1330 | March 17, 2016   Page 4 of 10
         Requirements for Involuntary Termination of Parental Rights
[10]   Parental rights are of a constitutional dimension, but the law provides for the

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

       their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 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.


[11]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

       allege and prove by clear and convincing evidence in order to terminate a

       parent-child relationship:


               (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:




       Court of Appeals of Indiana | Memorandum Decision 01A04-1509-JT-1330 | March 17, 2016   Page 5 of 10
               (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.


[12]   If the court finds that the allegations in a petition described above are true, the

       court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a). A trial

       court must judge a parent’s fitness to care for his or her child at the time of the

       termination hearing, taking into consideration evidence of changed conditions.

       In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The trial

       court must also “evaluate the parent’s habitual patterns of conduct to determine

       the probability of future neglect or deprivation of the child.” Id.


                                                    Analysis
[13]   Father initially makes a cursory allegation that termination “was a violation of

       [his] rights as protected by the United States Constitution” because the DCS did

       not provide him with services during his incarceration. (Father’s Br. at 11.)

       However, he does not develop a due process or constitutional argument apart

       from his suggestion that the DCS could not have met its burden of proof on the

       probability of changed conditions when he had not affirmatively refused
       Court of Appeals of Indiana | Memorandum Decision 01A04-1509-JT-1330 | March 17, 2016   Page 6 of 10
       avenues for change. We interpret Father’s argument to be a challenge to the

       sufficiency of the evidence relating to Section 31-35-2-4(b)(2)(B) (reasonable

       probability conditions will not be remedied or relationship poses a threat to

       child’s well-being). He does not challenge the trial court’s determination

       pursuant to Sections 31-35-2-4(b)(2)(A) (removal from parent), (C) (best

       interests), or (D) (satisfactory plan).


[14]   Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

       therefore the court needed only to find that one of the three requirements of

       subsection (b)(2)(B) had been established by clear and convincing evidence. See

       L.S., 717 N.E.2d at 209. Here, Father argues that the DCS failed to establish,

       by clear and convincing evidence, that there is a reasonable probability that the

       conditions resulting in the removal or reasons for placement outside the home

       will not be remedied. See I.C. § 31-35-2-4(b)(2)(B)(i).


[15]   Father claims that he has been a model prisoner, drug-free and without conduct

       write-ups. He also focuses upon the impossibility of completing the ordered

       services during his incarceration. Strictly speaking, Father’s claim that he did

       not “refuse to do anything requested of him by DCS” has evidentiary support.

       (Father’s Br. at 14.) He remained incarcerated throughout the CHINS

       proceedings and was not able to comply with some provisions of the CHINS

       dispositional order. A DCS attempt to arrange visitation was not timely

       honored by the Department of Correction (“the DOC”), and Father has never




       Court of Appeals of Indiana | Memorandum Decision 01A04-1509-JT-1330 | March 17, 2016   Page 7 of 10
       even met his youngest child. However, the trial court was not constrained to a

       simple evaluation of whether Father refused offered services. 2


[16]   The relevant statute does not simply focus on the initial basis for removal for

       purposes of determining whether a parent’s rights should be terminated, “but

       also those bases resulting in the continued placement outside the home.” In re

       A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. Initially, the DCS

       removed Children because of parental drug use and lack of supervision. By the

       time of the termination hearing, both parents were incarcerated. At that time,

       and for a significant amount of time in the future, neither parent could provide

       Children with the necessities of life. Although both may have remained drug

       free during incarceration, the trial court was obligated to consider their

       historical conduct during periods of freedom, and the past failures to respond to

       the limited drug treatment in which they had participated. See In re J.T., 742

       N.E.2d at 512.


[17]   Mother’s challenge in regard to the sufficiency of the evidence also focuses on

       the probability of changed conditions. She, like Father, claims to have

       maintained her sobriety in prison. Additionally, she argues that some of the

       trial court’s findings of fact are inaccurate, inadequate, or misleading. In




       2
         The DCS has no obligation to plead and prove that services have been offered to a parent to assist in
       fulfilling parental responsibilities. S.E.S. v. Grant Cnty Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992).

       Court of Appeals of Indiana | Memorandum Decision 01A04-1509-JT-1330 | March 17, 2016                 Page 8 of 10
       particular, she challenges the findings as to her release date and her

       participation in DOC programs.


[18]   Mother does not deny that she had a history of drug abuse, had not completed a

       DOC or DCS approved treatment program, or that her projected release date,

       as of the time of the termination hearing, was December 31, 2016. Rather, she

       points out that she had a possible release date as early as September of 2015, 3

       that she was ineligible because of her release date for a particular DOC

       substance abuse treatment program,4 and that she had privately obtained

       “several appointments” with Tim Hirschy before her incarceration. (Mother’s

       Br. at 12.)


[19]   However, although Mother suggests that participation in a DOC drug treatment

       and its GED program could not occur simultaneously, her caseworker Elaine

       Kuppler testified to the contrary.5 Moreover, there is no documentation from

       which the trial court could conclude that Mother’s “four or five” sessions with a




       3
        Mother claims that she is now living in a work release facility in Indianapolis. However, this was not
       evidence of record at the time of the termination hearing. Mother testified to her expectation that she would
       be released to “house arrest” or to work release at some point. (Tr. at 12, 22.)
       4
         Mother testified that a DOC substance abuse program required that she be “down to nine months” in her
       sentence for participation. (Tr. at 17.) She further testified that there were Alcoholics Anonymous and
       Narcotics Anonymous groups at the prison but she “didn’t know” why she did not participate. (Tr. at 20.)
       5
         Mother testified that she had been offered substance abuse classes at the DOC, but wanted to “get a GED
       right away,” and “wasn’t sure” that she could do both simultaneously. (Tr. at 26.) Kuppler testified that
       basic education and substance abuse classes could be taken simultaneously but “[Mother] opted not to do the
       substance abuse simultaneously with the education.” (Tr. at 107.) This was corroborated by caseworker
       Laurie Hoffacker.

       Court of Appeals of Indiana | Memorandum Decision 01A04-1509-JT-1330 | March 17, 2016            Page 9 of 10
       privately-arranged therapist constituted a drug treatment program. (Tr. at 12.)6

       She was unable to participate in the last DCS referral due to her relapse and re-

       incarceration. In short, Mother asks that this court reweigh the evidence and

       accord greater weight to the testimony of her efforts and future aspirations.

       This we cannot do. In re A.A.C., 682 N.E.2d at 544.


[20]   The trial court concluded that the parents failed to remedy lengthy substance

       abuse addictions, were unable to presently parent due to incarceration, and had

       not benefitted from services offered in the past. The evidentiary record supports

       the trial court’s factual findings and conclusions. The DCS presented sufficient

       evidence from which the trial court could conclude that there was a reasonable

       probability that the conditions resulting in the removal or reasons for placement

       outside the home would not be remedied.



                                                  Conclusion
[21]   The DCS established by clear and convincing evidence the requisite elements to

       support the termination of parental rights.


[22]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       6
        Mother also testified that her meetings with the therapist had taken place only “a couple of times.” (Tr. at
       27.)

       Court of Appeals of Indiana | Memorandum Decision 01A04-1509-JT-1330 | March 17, 2016            Page 10 of 10
