MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Feb 18 2020, 8:25 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
for Mother
                                                          David E. Corey
Leanna Weissmann                                          Robert J. Henke
Lawrenceburg, Indiana                                     Deputy Attorneys General
for Father                                                Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 18, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of D.Y., Mother, T.W., Father,                            19A-JT-1559
and A.W., Minor Child,                                    Appeal from the
D.Y. and T.W.,                                            Knox Superior Court
                                                          The Honorable
Appellants-Respondents,
                                                          Gara U. Lee, Judge
        v.                                                Trial Court Cause No.
                                                          42D01-1812-JT-33
Indiana Department of
Child Services,
Appellee-Petitioner.



Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020                   Page 1 of 7
[1]   D.Y. (“Mother”) and T.W. (“Father”) (together, “Parents”) separately appeal

      the trial court’s order terminating their parental rights to their daughter, A.W.

      (“Child”). On appeal, Parents raise the following restated issues for review:


              I.       Whether the Indiana Department of Child Services
                       (“IDCS”) deprived them of due process by its failure to
                       properly and timely respond to Parents’ discovery
                       requests; and


              II.      Whether IDCS failed to prove by clear and convincing
                       evidence that their parental rights should be terminated.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On January 20, 2017, Mother admitted smoking K2 and possessing

      paraphernalia. Mother was arrested for violating her probation. Because

      Father was also incarcerated, Child was placed in the care of Maternal

      Grandmother.


[4]   On February 11, 2017, IDCS received a report that Maternal Grandmother was

      using methamphetamine and was “high on Klonopin.” Ex. Vol. 1 at 21.

      Maternal Grandmother submitted to a drug screen and told the IDCS case

      manager that it would be positive for methamphetamine. Id. at 22. IDCS

      removed the Child from Maternal Grandmother and placed her with other

      relatives.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020   Page 2 of 7
[5]   On February 14, 2017, IDCS filed its petition alleging that Child was a child in

      need of services (“CHINS”) based on (1) the incarceration of both of her

      parents and (2) Maternal Grandmother’s use of methamphetamine while caring

      for Child. The trial court adjudicated Child a CHINS on April 27, 2017 and

      granted IDCS wardship of Child on May 15, 2017.


[6]   At the hearing on May 15, 2017, the trial court entered its dispositional order

      directing Parents to take a number of actions related to their parenting. At the

      time, Mother was scheduled to be out on work release on November 6, 2017.

      Mother admitted that she relapsed in December 2017 and that she had “started

      using again.” Id. at 163. In February 2018, Mother was arrested for assisting a

      criminal, and her probation was revoked. Father was released on parole in July

      2017, but he was returned to prison for possession of K-2.


[7]   On June 11, 2018, the trial court found that Mother was only partially

      compliant and Father was non-compliant. The Court adopted a permanency

      plan that included adoption. In November 2018, the Trial Court found that

      parents had not visited Child and had not complied with the case plan. At that

      time, Mother was incarcerated again, and although Father had been released

      from incarceration during the summer, he was not participating in services.


[8]   On December 7, 2018, IDCS filed a petition to terminate Parents’ parental

      rights to Child. A termination hearing was held. At the time of the hearing,

      Mother was residing in an apartment as part of the Life After Meth program but

      did not know how long she would reside there. Tr. Vol. 2 at 84. Father was


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020   Page 3 of 7
       again incarcerated after his work release was revoked. Tr. Vol. 3 at 21. On July

       8, 2019, the trial court entered its order terminating Parents’ parental rights.

       Mother and Father now appeal.


                                      Discussion and Decision

                                        I.       Discovery Requests
[9]    The trial court held its initial hearing on IDCS’s termination request on

       December 10, 2018 and set fact-finding to commence on March 4, 2019. On

       February 25, 2019, seventy-six days after the initial hearing in this cause and

       seven days before the commencement of the termination hearing, Mother

       propounded her discovery requests.


[10]   Waiver is the intentional relinquishment of a known right. Am. Nat’l. Bank &

       Trust Co. v. St. Joseph Valley Bank, 391 N.E.2d 685, 687 (Ind. Ct. App. 1979).

       Indiana Trial Rule 33(c) provides a period of thirty-three days for a party’s

       response to a discovery request. After her tender of discovery, the trial court on

       two occasions offered Mother a continuance so that the court could compel

       IDCS to provide answers to Mother’s discovery requests. Mother declined the

       trial court’s offers and stated that she was prepared to proceed. By doing so,

       Mother waived any obligation on the part of IDCS to provide the discovery.


                                         II.      Termination Order
[11]   To terminate the parent-child relationship, Indiana Code section 31-35-2-4(b)(2)

       requires the State to allege and prove by clear and convincing evidence that

       there is a reasonable probability that the condition that resulted in the child’s
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020   Page 4 of 7
       removal or the reasons for placement outside the home of the parents will not

       be remedied or that there is a reasonable probability that the continuation of the

       parent-child relationship poses a threat to the well-being of the child. Ind. Code

       § 31-35-2-4(b)(2)(B). In addition, IDCS must show that termination is in the

       best interests of the child and that there is a satisfactory plan for the care and

       treatment of the child. Ind. Code § 31-35-2-4(b)(2)(C), (D).


[12]   To determine whether the conditions that led to the child’s placement outside

       the home will not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.

       Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we must

       determine what conditions led to their placement and retention in foster care,

       and second, we must determine whether there is a reasonable probability that

       those conditions will not be remedied. Id. In the second step, the trial court

       must judge a parent’s fitness at the time of the termination proceeding, taking

       into consideration evidence of changed conditions and 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.’”

       E.M. v. Ind. Dep’t of Child Servs., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K.,

       989 N.E.2d at 1231).


[13]   Here, the conditions that led to Child’s removal from Parents’ care were

       Mother’s incarceration due to drug use and Father’s incarceration. There was

       significant evidence demonstrating Parents’ habitual patterns of conduct in

       failing to address their drug problems and in failing to provide a safe,

       consistent, nurturing residence and environment for Child. The trial court

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020   Page 5 of 7
       found that the history of inconsistent compliance by both Mother and Father

       was an indicator of future behavior. When Mother was not in a structured

       environment, she abused drugs and engaged in criminal conduct. Mother’s

       history shows that she is unlikely to remain sober and avoid criminal activities.

       Father’s criminal history dates back to 2011. He was incarcerated for much of

       the proceedings and admitted that, when he was not incarcerated, he was only

       able to remain drug free for a month.                  The evidence presented supported the

       conclusion that there was a reasonable probability that the reasons for Child’s

       continued placement outside Parents’ home would not be remedied.1


[14]   In determining what is in the best interests of the child, a trial court is required

       to look at the totality of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct.

       App. 2010) (citing In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied), trans. dismissed. In doing so, the trial court must subordinate the

       interests of the parents to those of the child involved. Id. Termination of a

       parent-child relationship is proper where the child’s emotional and physical

       development is threatened. Id. (citing In re R.S., 774 N.E.2d 927, 930 (Ind. Ct.

       App. 2002), trans. denied). A parent’s historical inability to provide a suitable,

       stable home environment along with the parent’s current inability to do so




       1
         We do not have to address the issue of whether there was a reasonable probability that the continuation of
       the parent-child relationship posed a threat to Child’s well-being because Indiana Code section 31-35-2-
       4(b)(2)(B) is written such that, to properly effectuate the termination of parental rights, the juvenile court
       need only find that one of the three requirements of subsection (b)(2)(B) has been established by clear and
       convincing evidence. A.D.S. v. Ind. Dep’t Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans.
       denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020                   Page 6 of 7
       supports a finding that termination is in the best interest of the child. In re A.P.,

       981 N.E.2d 75, 82 (Ind. Ct. App. 2012). The trial court need not wait until the

       child is irreversibly harmed such that her physical, mental and social

       development is permanently impaired before terminating the parent-child

       relationship. In re A.K., 924 N.E.2d at 224.


[15]   In light of the overwhelming evidence of Parents’ criminal activities, long

       periods of incarceration, and drug use, we conclude that Child’s emotional and

       physical development would be threatened if she remained in Parents’ custody.

       Accordingly, we hold that the evidence supported the trial court’s

       determination that termination of Parents’ parental rights was in Child’s best

       interests.


[16]   Based on the record before us, we cannot say that the trial court’s termination

       of Parents’ parental rights to Child was clearly erroneous. We, therefore, affirm

       the trial court’s judgment.


[17]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020   Page 7 of 7
