MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Sep 19 2019, 5:43 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                       Curtis T. Hill, Jr.
Law Office of Christopher G. Walter,                      Attorney General of Indiana
P.C.
Nappanee, Indiana                                         Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          September 19, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of D.B., L.B., H.B. & S.B.                                19A-JT-542
(Minor Children)                                          Appeal from the Starke Circuit
                                                          Court
and                                                       The Honorable Kimberly Hall,
                                                          Judge
D.J.B. (Father) and M.M.B.
(Mother),                                                 Trial Court Cause Nos.
Appellants-Respondents,                                   75C01-1808-JT-13
                                                          75C01-1808-JT-14
        v.                                                75C01-1808-JT-15
                                                          75C01-1808-JT-16
Indiana Department of Child
Services,



Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019             Page 1 of 13
      Appellee-Petitioner.




      Bradford, Judge.



                                           Case Summary
[1]   D.J.B. (“Father”) and M.M.B. (“Mother”) (collectively, “Parents”) are the

      parents of D.B., L.B., H.B., and S.B. (collectively, “the Children”). The

      Department of Child Services (“DCS”) became involved with the family after

      receiving reports of poor home conditions and the Children having poor

      hygiene. DCS initially left the Children in Parents’ care while DCS worked

      with Parents to improve the condition of the family’s home. The Children were

      determined to be children in need of services (“CHINS”) and Parents were

      ordered to complete certain services. While the CHINS proceedings were

      pending, the Children were removed from Parents’ care and placed in foster

      care after the conditions in the family’s home continued to deteriorate and DCS

      became aware of substance abuse by Parents. Parents failed to successfully

      complete the ordered services leading DCS to file petitions to terminate their

      parental rights to the Children. Following an evidentiary hearing, the juvenile


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 2 of 13
      court granted DCS’s petitions to terminate Parents’ parental rights to the

      Children. On appeal, Parents contend that DCS failed to present sufficient

      evidence to support the termination of their parental rights. We affirm.



                            Facts and Procedural History
[2]   D.B. was born on February 2, 2004; L.B. was born on August 10, 2005; H.B.

      was born on February 9, 2008; and S.B. was born on July 2, 2009. DCS filed

      petitions alleging the Children to be CHINS in May of 2016, after observing

      “the Children to have poor hygiene” and poor home conditions. Ex. Vol. III,

      p. 7. As for the home conditions, on May 5, 2016, “DCS observed the family

      home to be extremely cluttered and messy with piles of clothing throughout the

      home. The home had a strong smell of animals.” Ex. Vol. III, p. 7. Mother

      admitted that the home was dirty and that she and Father needed “assistance to

      improve the conditions of the home.” Ex. Vol. II, p. 7. On June 14, 2016,

      Parents admitted that the Children were CHINS. Following a dispositional

      hearing, the juvenile court ordered Parents to: (1) maintain safe, sanitary,

      suitable, and DCS approved housing; (2) obtain and/or maintain a legal source

      of income sufficient to support all family members; (3) complete a parenting

      assessment and follow all recommendations; (4) complete a substance use

      assessment and follow all recommendations; (5) submit to random drug

      screens; (6) complete a clinical assessment and follow all recommendations;

      and (7) cooperate with DCS, the court-appointed special advocate (“CASA”),




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 3 of 13
      and all service providers. The juvenile court further ordered that the Children

      were to remain placed in the family home with Parents.


[3]   The Children were removed from Parents’ home on July 29, 2016, after the

      conditions of the home deteriorated and DCS became aware of substance abuse

      by Parents. Following a February 28, 2017 periodic case review hearing, the

      juvenile court found that Parents “have partially complied” with the Children’s

      case plans. Ex. Vol. III, p. 19. Specifically, the juvenile court found that while

      Parents had visited the Children and cooperated with DCS,


              The mother is making progress in her substance abuse treatment
              but the progress is slow due to missed appointments, missed
              group sessions, a positive screen for methadone, and using
              prescription medication over the therapeutic level. The father is
              not consistent with substance abuse treatment and has failed
              approximately 7 drug screens for either marijuana, Xanax,
              cocaine or morphine. The mother and father have not
              participated in home based case work. The mother and father
              were arrested during this reporting period for an incident
              involving domestic violence between mother and father. A No
              Contact Order was entered as a result of the incident.


      Ex. Vol. III, p. 19. The juvenile court determined that Parents “have not

      enhanced their ability to fulfill their parental obligations.” Ex. Vol. III, p. 19.

      On June 27, 2017, the juvenile court found that (1) Parents were inconsistent in

      their participation in individual therapy and substance abuse treatment and (2)

      both had failed to maintain their sobriety and had tested positive for

      methamphetamine. Parents continued to struggle with substance abuse and



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 4 of 13
      their participation in services remained inconsistent throughout the CHINS

      proceedings.


[4]   On August 23, 2018, DCS filed petitions seeking the termination of Parents’

      parental rights to the Children. The juvenile court conducted an evidentiary

      hearing on DCS’s petitions on January 7 and 9, 2019. During the evidentiary

      hearing, DCS presented evidence indicating that Parents had been unable to

      secure stable, acceptable housing and had continued to test positive for drugs.

      DCS also presented evidence indicating that the Children required stability and

      were doing well in their current placement. On February 8, 2019, the juvenile

      court issued orders terminating Parents’ parental rights to the Children.



                                 Discussion and Decision
[5]   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). Although

      parental rights are of a constitutional dimension, the law allows for the

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

      parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),

      trans. denied. Parental rights, therefore, are not absolute and must be

      subordinated to the best interests of the children. Id. Termination of parental

      rights is proper where the children’s emotional and physical development is

      threatened. Id. The juvenile court need not wait until the children are



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 5 of 13
      irreversibly harmed such that their physical, mental, and social development is

      permanently impaired before terminating the parent–child relationship. Id.


[6]   Parents contend that the evidence is insufficient to sustain the termination of

      their parental rights to the Children. In reviewing termination proceedings on

      appeal, this court will not reweigh the evidence or assess the credibility of the

      witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d

      874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the

      juvenile court’s decision and reasonable inferences drawn therefrom. Id.

      Where, as here, the juvenile court includes findings of fact and conclusions

      thereon in its order terminating parental rights, our standard of review is two-

      tiered. Id. First, we must determine whether the evidence supports the

      findings, and, second, whether the findings support the legal conclusions. Id.


[7]   In deference to the juvenile court’s unique position to assess the evidence, we

      set aside the juvenile court’s findings and judgment terminating a parent–child

      relationship only if they are clearly erroneous. Id. A finding of fact is clearly

      erroneous when there are no facts or inferences drawn therefrom to support it.

      Id. A judgment is clearly erroneous only if the legal conclusions made by the

      juvenile court are not supported by its findings of fact, or the conclusions do not

      support the judgment. Id.


[8]   Parents claim that DCS failed to present sufficient evidence to prove by clear

      and convincing evidence:


              (B) that one (1) of the following is true:

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 6 of 13
                     (i) There is a reasonable probability that the
                     conditions that resulted in the child[ren]’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[ren].
                     (iii) The child[ren have], on two (2) separate
                     occasions, been adjudicated a child in need of
                     services;
               (C) that termination is in the best interests of the child[ren.]


       Ind. Code § 31-35-2-4(b)(2).


                    I. Indiana Code Section 31-35-2-4(b)(2)(B)
[9]    It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

       in the disjunctive, the juvenile court need only find that one of the conditions

       listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.

       2003), trans. denied. Therefore, where the juvenile court determines that one of

       the above-mentioned factors has been proven and there is sufficient evidence in

       the record supporting the juvenile court’s determination, it is not necessary for

       DCS to prove, or for the juvenile court to find, either of the other factors listed

       in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.


[10]   DCS does not allege that the Children have been adjudicated CHINS on two

       separate occasions. As such, DCS had to prove either that (1) the conditions

       resulting in removal from or continued placement outside Parents’ home will

       not be remedied or (2) the continuation of the parent-child relationship poses a

       threat to the Children.
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 7 of 13
[11]   The Children were removed from Parents’ home for two reasons: home

       conditions and substance abuse by Mother and Father. In concluding that the

       conditions leading to the Children’s removal from Parents’ home were not

       remedied, the juvenile court found that while Mother and Father presented

       evidence that they believed demonstrated that they had addressed both issues,

       the court did not believe that Parents had successfully addressed their substance

       abuse issues or that Parents would maintain their allegedly improved home

       conditions.


[12]   At the time of removal, the conditions of Parents’ home were atrocious and

       barely livable. Since removal, Mother has resided in eight different residences

       and Father has resided in at least four different residences. Parents have been

       evicted from at least two of these residences for failure to pay rent. At the time

       of the evidentiary hearing, Parents presented pictures to show that their current

       home conditions were appropriate. However, neither DCS Family Case

       Manager (“FCM”) Kara Crippen nor the Children’s CASA have been able to

       verify the conditions of the home. The juvenile court noted that while the

       pictures presented by Mother appear to show appropriate living conditions, the

       court was not convinced, given Parents’ history of instability, that Parents

       would be able to maintain the conditions of the home.


[13]   The evidence also establishes that Parents have a long history of substance

       abuse. At the time of removal, Mother was abusing her prescription medication

       and Father was taking certain unprescribed medications and cocaine. Mother

       and Father completed random drug screens from May of 2016 through July of

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 8 of 13
       2018. During this period, Father tested positive, without having valid

       prescriptions, eight times for amphetamine, eight times for methadone, four

       times for morphine, and three times for benzodiazepine. Father also tested

       positive four times for THC, four times for oxycodone, twice for

       methamphetamine, and once for fentanyl. Each of Father’s positive tests for

       oxycodone revealed fatal levels of the drug in Father’s system, leading the

       toxicology lab to request a welfare check. Mother tested positive, without

       having valid prescriptions, two times for hydrocodone, two times for

       benzodiazepine, two times for suboxone, and one time for methadone. Mother

       also tested positive five times for oxycodone and once for methamphetamine.

       In addition, Mother failed to consistently take her prescription medication and

       Parents each refused at least one drug screen despite claiming to be sober.


[14]   Parents’ substance abuse assessments revealed a high probability that each was

       suffering from a substance abuse disorder. The assessments indicated that

       educational courses would not adequately address Parents’ issues and that

       Parents would require addictions therapy and exposure to appropriate

       community support groups. Mother’s assessment also noted that Mother

       suffered from considerable emotional pain and found that Mother would need a

       more comprehensive mental status evaluation. While Mother made some

       progress in treatment, Father did not. During group sessions, Father was

       combative, blamed DCS for everything, and did not take accountability for his

       actions. Father also provided various excuses for his failure to consistently

       attend treatment.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 9 of 13
[15]   The juvenile court found that Parents suffer from both a physical and

       psychological addition. Mother also suffers from mental illness, including

       bipolar disorder, depression, and anxiety. She also suffers from social anxiety,

       low self-esteem, and struggles without Father. Father, however, did not come

       across as supportive of Mother. Rather, he would belittle and attempt to

       control her. Mother does not have additional family support and, at the time of

       the evidentiary hearing, was not attending therapy, NA/AA meetings, or

       support groups. She was not seeing a doctor or taking any medication for her

       mental health. Father was also not attending therapy, NA/AA meetings, or

       support groups.


[16]   The juvenile court found that Parents were not addressing their addiction or

       mental health needs and that Parents are co-dependent and unable to succeed

       without professional help. The juvenile court agreed with the service providers

       that Parents were provided numerous services and multiple attempts at

       reunification and there was nothing more that could have been provided.


[17]   Parents do not challenge any of the juvenile court’s findings, all of which are

       supported by the record. Instead, they argue that the juvenile court should not

       have considered their substance abuse issues as that was not a reason for the

       Children’s removal from their home. Contrary to Parents’ argument, however,

       the record clearly indicates that the Children were removed from Parents’ home

       due to concerns about both the conditions of the home and substance abuse by

       Parents. Further, while Parents argue that they have made progress, they have

       yet to progress to the point where service providers were confident that they

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 10 of 13
       could adequately care for the Children. Given the significant evidence

       outlining Parents’ continued struggles with maintaining adequate housing and

       substance abuse issues, we conclude that the evidence is sufficient to prove that

       they are unlikely to remedy the conditions that led to the Children’s removal

       from their home. Parents’ claim to the contrary amounts to an invitation for

       this court to reweigh the evidence, which we will not do. See In re S.P.H., 806

       N.E.2d at 879.


                   II. Indiana Code Section 31-35-2-4(B)(2)(C)
[18]   We are mindful that in considering whether termination of parental rights is in

       the best interests of a child, the juvenile court is required to look beyond the

       factors identified by DCS and look to the totality of the evidence. McBride v.

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

       2003). In doing so, the juvenile court must subordinate the interests of the

       parents to those of the children involved. Id. “A parent’s historical inability to

       provide a suitable environment along with the parent’s current inability to do

       the same supports a finding that termination of parental rights is in the best

       interests of the children.” Lang v. Starke Cty. Office of Family & Children, 861

       N.E.2d 366, 373 (Ind. Ct. App. 2007). Furthermore, this court has previously

       determined that the testimony of the case worker, guardian ad litem (“GAL”),

       or a CASA regarding a child’s need for permanency supports a finding that

       termination is in the child’s best interests. Id. at 374; see also Matter of M.B., 666

       N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 11 of 13
[19]   With respect to the best interests of the Children, the juvenile court found as

       follows:


                The Court finds that DCS has shown by clear and convincing
                evidence that termination of parental rights is in the best interest
                of [the Children]. Mother and Father love their children;
                however, this matter is about the best interest of the Child[ren],
                not the parents. The Child[ren] have been out of the home for
                nearly 30 months, which is an extremely long time in the
                perspective of the Child[ren]. When the children were removed,
                they were disrespectful, had boundary problems, and were rude
                and violent to each other during visits.… The children were
                argumentative and would not follow directions in the foster
                home when they had visitation with Mother and Father.
                Visitation was not consistent due to Mother and Father’s
                inability to maintain sobriety. The back and forth with visitation
                was hard on the children.…

                The children have lived a life in limbo. The children need
                stability and structure. They do not need any more uncertainty.
                Mother and Father are unable to provide a home environment
                that the Child[ren] require[] to thrive. [A service provided
                testified that she] believes the children started thriving in the last
                6 months, which correlates with no visitations with Mother and
                Father. The children love Mother and Father, but they cannot
                wait indefinitely for their parents to work toward reunification.
                DCS, CASA and this Court believe that termination of parental
                rights is in the best interest of [the Children].


       Appellants’ App. Vol. II pp. 96–97.1




       1
         We quote the findings issued in the juvenile court’s order relating to D.B. The trial court’s findings relating
       to the likelihood that the conditions would not be remedied are essentially the same for each of the Children.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019                  Page 12 of 13
[20]   The juvenile court’s findings are supported by the record. FCM Crippen

       testified that she believed that termination of Parents’ parental rights was in the

       best interests of the Children. In addition, Reverend Anthony Spanley, the

       Children’s CASA, also testified that he believed that termination of Parents’

       parental rights was in the best interests of the Children, adding that he had

       “seen no stability in the parents … as far as being able to stay off drugs and

       maintain housing.” Tr. p. 222. The testimony of FCM Crippen and Rev.

       Spanley is sufficient to sustain the juvenile court’s findings regarding the best

       interests of the Children.


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


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019   Page 13 of 13
