MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                     Apr 11 2018, 9:33 am

regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy E. Stucky                                         Curtis T. Hill, Jr.
Stucky, Lauer & Young, LLP                                Attorney General of Indiana
Fort Wayne, Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                          I0N THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 11, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of: Z.W. and Za.W.                           02A03-1711-JT-2680
(Minor Children)                                          Appeal from the Allen Superior
D.W. (Mother),                                            Court
                                                          The Honorable Charles F. Pratt,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause Nos.
                                                          02D08-1701-JT-21
                                                          02D08-1701-JT-22
The Indiana Department
of Child Services
Appellee-Petitioner



Baker, Judge.


Court of Appeals of Indiana | Memorandum Decision 02A03-1711-JT-2680 | April 11, 2018             Page 1 of 10
[1]   D.W. (Mother) appeals the trial court’s order terminating her parent-child

      relationship with her two minor children. Mother argues that there is

      insufficient evidence supporting the termination. Finding the evidence

      sufficient, we affirm.


                                                         Facts
[2]   Mother has two children: Z.W., born in February 2008, and Za.W., born in

      January 2010.1 In the past, Mother and the children lived in Texas. The

      children were removed from her care and custody from December 2011 through

      May 2012 because their father was incarcerated and Mother was placed in a

      mental hospital. At some point, Mother and the children moved to Indiana.


[3]   On August 31, 2013, Mother and the children were on a bus when Mother had

      some sort of psychotic episode, throwing the children to the floor and “reciting

      religious rantings[.]” Tr. Vol. II p. 135. That day, Mother was hospitalized in a

      mental health facility and the Department of Child Services (DCS) removed the

      children from her care and custody. On September 4, 2013, DCS filed a

      petition alleging that the children were children in need of services (CHINS).


[4]   On December 9, 2013, the trial court found the children to be CHINS after

      Mother admitted that she had been in a mental health facility and that she is

      prescribed medication for post-traumatic stress disorder (PTSD) and




      1
        The children’s father voluntarily relinquished his parental rights and is not part of this appeal. He has not
      seen the children since sometime in 2011.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-JT-2680 | April 11, 2018               Page 2 of 10
      schizophrenia but had not been taking the medication. On December 18, 2013,

      the trial court issued a dispositional decree, ordering that Mother complete a

      diagnostic assessment and a psychiatric evaluation, participate with home-

      based services and individual counseling, comply with all recommendations

      stemming from any of those services, take all prescribed medication, and

      participate with supervised visitation with the children.


[5]   From September 2013 through November 2014, Mother received services

      including counseling, case work, supervised visitation, and random drug

      screens through Quality Counseling and Psychological Services (Quality

      Counseling). During that time, Mother’s mental health was unstable, with

      periods of stability interspersed with periods of suspected psychosis. She

      refused to submit to drug screens much of the time, exhibiting agitation and

      yelling that she was being harassed. During her visits with the children, her

      periods of psychosis often appeared, at which time she would leave the visit and

      wander through the facility, leaving the visitation supervisor alone with the

      children. Her visitations were put on hold several times because of her inability

      to follow the rules. In April 2014, Mother completed a psychiatric assessment

      but “sabotaged the whole thing” with poor behavior, meaning that no

      conclusions were made. Id. at 95. She had three to four different counselors at

      Quality Counseling; on average, she requested a new service provider once

      every one to two months. Quality Counseling transferred Mother to another

      provider in November 2014 because her relationships with the Quality

      Counseling providers had gotten “really bad.” Id. at 98. After over a year of


      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-JT-2680 | April 11, 2018   Page 3 of 10
      services at Quality Counseling, Mother had made no significant progress on her

      issues.


[6]   After being transferred from Quality Counseling, Mother sought out counseling

      on her own, but failed to attend any appointments between May and October

      24, 2016, or from January 13, 2017, through the time of the termination hearing

      in June 2017.


[7]   In November 2014, Mother’s visits were supervised by a new agency. Those

      visits went so well over time that in February 2016, Mother was allowed to

      have unsupervised visits with the children, including overnight visits. In May

      2016, Mother and maternal aunt, with whom the children were placed, got into

      some sort of argument. Mother drove the children away from maternal aunt’s

      home without permission; the aunt was concerned that Mother was intoxicated.

      After this incident, Mother’s visits returned to being supervised. During the

      visits between June and November 2016, the supervisor noted that Mother

      often favored one child over the other and terminated one visit because he

      smelled alcohol on Mother. Mother was given a new visitation supervisor (at

      her request) in November 2016. At one February 2017 visit, the supervisor

      smelled alcohol on Mother and notified DCS. DCS requested that Mother

      submit to a drug screen but she refused. Mother stopped attending the visits

      after that incident; as of the termination hearing in June 2017, she had not

      visited with the children since February.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-JT-2680 | April 11, 2018   Page 4 of 10
[8]    In April 2015, Mother completed a clinical interview; she was diagnosed with

       major depressive disorder, and it was recommended that she complete

       psychological testing. Consequently, in May 2015, she completed a

       psychological assessment; she was diagnosed with schizophrenia, major

       depressive disorder, and alcohol use disorder.


[9]    Mother also completed a substance abuse assessment, which recommended that

       she participate in substance abuse treatment. She participated with treatment,

       but because she continued to test positive for alcohol, it was recommended that

       she participate in a relapse prevention program. During the CHINS case,

       Mother tested positive for alcohol over forty-five times.


[10]   In February 2017, Mother essentially stopped participating in the case. She

       stopped attending visits, stopped providing random drug screens, stopped

       communicating with DCS, and failed to attend the final child and family team

       meeting.


[11]   On February 1, 2017, DCS filed a petition to terminate the parent-child

       relationship between Mother and the children. The termination hearing took

       place on June 13, June 28, July 10, and July 18, 2017. Mother failed to appear

       at all days of the hearing. On October 24, 2017, the trial court entered an order

       granting the termination petition. Mother now appeals.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-JT-2680 | April 11, 2018   Page 5 of 10
                                     Discussion and Decision
                                       I. Standard of Review
[12]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


[13]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:


               (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.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-JT-2680 | April 11, 2018   Page 6 of 10
                 (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:


                 (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.


Court of Appeals of Indiana | Memorandum Decision 02A03-1711-JT-2680 | April 11, 2018   Page 7 of 10
       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                           II. Remedy of Reasons for Removal
[14]   The bulk of Mother’s argument is that the trial court erred by concluding that

       there is a reasonable probability that the conditions resulting in the children’s

       continued removal from her care and custody will not be remedied.2 The

       reason that the children were originally removed from Mother’s care and

       custody was her unstable mental health; they continued to be removed because

       of both her mental health and concerns about her sobriety.


[15]   Mother correctly points out that by and large, she participated with most court

       ordered services. The record reveals, however, that although she participated,

       she failed to benefit from those services. See in re A.H., 832 N.E.2d 563, 570

       (Ind. Ct. App. 2005) (mere participation with services does not establish that

       conditions have been remedied if the services do not result in the needed change

       and the parent does not acknowledge a need for change). She did not benefit

       from the many services she received at Quality Counseling for over a year. She

       participated with substance abuse treatment but continued to test positive for




       2
         This element of the statute and the element related to continuation of the parent-child relationship posing a
       threat to the children’s well-being are phrased in the disjunctive, but the trial court did not make a finding
       with respect to the continuation of the parent-child relationship.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-JT-2680 | April 11, 2018              Page 8 of 10
       alcohol, refused to screen altogether at times, and insisted that she did not have

       an alcohol problem.3


[16]   Furthermore, in February 2017, Mother withdrew from the case altogether. In

       the five months leading up to the termination hearing, Mother stopped

       attending counseling, stopped submitting to drug screens, stopped visiting with

       the children, and failed to attend a child and family team meeting. She also

       failed to attend any of the four days of the termination hearing.


[17]   Given that Mother failed to benefit from the services she participated with and

       that she then stopped participating altogether, we find that the evidence

       supports the trial court’s conclusion that there is a reasonable probability that

       the conditions resulting in the children’s original and continued removal from

       Mother’s care and custody will not be remedied.


                            III. Best Interests/Satisfactory Plan
[18]   Mother’s final argument is ostensibly related to whether the plan of adoption of

       the children by their maternal aunt is satisfactory. What she is actually arguing,

       however, is that termination is not in the children’s best interests and that,

       rather than termination and adoption, a transfer of custody to the maternal aunt

       is the better way to proceed.




       3
        Mother argues that the methodology employed by the drug testing company was faulty, but that argument
       goes to the weight to be given to that evidence, which is a determination to be made by the trial court that we
       will not second-guess.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-JT-2680 | April 11, 2018              Page 9 of 10
[19]   Mother had nearly four years to participate with services in the CHINS case so

       that she could provide a safe and stable home for her children. While she

       participated with services for years, however, she was never able to benefit from

       them. She progressed to unsupervised visits at one point, but those ended after

       she got into an argument with maternal aunt, who was concerned that Mother

       was intoxicated and drove the children from the aunt’s home without

       permission. The children were never returned to Mother’s care and, at the time

       of the termination hearing, she had not even seen them in five months. There is

       no reason to put off long-term stability for the children when the past four years

       have gotten Mother no closer to being ready to be a safe and appropriate parent.

       Under these circumstances, the trial court did not err by finding that

       termination is in the children’s best interests.


[20]   The children have been placed with their aunt the entire time they have been

       removed from Mother’s care and custody (except for three days following the

       argument between Mother and aunt, when they were in foster care). They are

       doing well in that placement. Consequently, the trial court did not err by

       finding that DCS has a satisfactory plan for the care and treatment of the

       children.


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


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-JT-2680 | April 11, 2018   Page 10 of 10
