MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                         Jan 13 2017, 9:25 am

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


ATTORNEY FOR APPELLANT –                                  ATTORNEYS FOR APPELLEE
MOTHER                                                    Curtis T. Hill, Jr.
Matthew J. McGovern                                       Attorney General of Indiana
Anderson, Indiana                                         Robert J. Henke
ATTORNEY FOR APPELLANT –                                  David E. Corey
FATHER                                                    Deputy Attorneys General
                                                          Indianapolis, Indiana
Mark Small
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         January 13, 2017
Child Relationship of:                                    Court of Appeals Case No.
                                                          22A05-1606-JT-1325
B.L.D.H. (Minor Child),
                                                          Appeal from the Floyd Circuit
and                                                       Court
D.D. (Mother) & B.H. (Father),                            The Honorable J. Terrence Cody,
Appellants-Respondents,                                   Judge
                                                          Trial Court Cause No.
        v.                                                22C01-1508-JT-517

The Indiana Department of
Child Services,
Appellee-Plaintiff



Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017   Page 1 of 9
      Baker, Judge.


[1]   D.D. (Mother) and B.H. (Father) (collectively, Parents) appeal the trial court’s

      order terminating their parent-child relationship with their child, B.L.D.H.

      (Child). Mother and Father argue that there is insufficient evidence supporting

      the termination order. Finding the evidence sufficient, we affirm.


                                                     Facts
[2]   Child was born in November 2013. Both Father and Mother have had

      substance abuse issues for many years. Father’s substance abuse began when

      he was run over by a train, an accident that led to the amputation of both of his

      legs.


[3]   In January 2014, Father battered Mother. This resulted in a protective order,

      which prohibited Father from being in contact with Mother or Child.

      Protective order notwithstanding, in February 2014, Father and Mother went to

      a hospital together because of back pain that Father was experiencing. Child

      was at Father’s brother’s house, where Child was staying the night. After

      observing symptoms of drug use, the hospital called an Indiana Department of

      Child Services (DCS) family case manager (FCM). The FCM noted that

      Parents were unable to stay conscious or communicate and that they were

      shaking. When DCS went to pick up Child from the relative’s house, the

      relative informed DCS that Child had been covered in feces from head to toe

      when he was dropped off. DCS also decided against placing Child with

      Father’s brother because he had a prior conviction for operating a vehicle while

      Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017   Page 2 of 9
      intoxicated. Instead, Child was placed with Mother’s niece, where he has

      remained ever since.


[4]   DCS filed a petition alleging that Child was a child in need of services (CHINS)

      based upon Father’s domestic violence, his violation of the protective order,

      and Parents’ substance abuse. At an April 10, 2014, hearing, Father waived the

      factfinding process and Mother admitted to the CHINS allegations. In

      particular, Mother admitted that she had taken more than the prescribed

      amount of her medication and that she was living with Father in violation of

      the protective order.


[5]   The trial court issued a dispositional decree on June 26, 2014. It ordered

      Parents to comply with several requirements, including the following: contact

      the FCM weekly; notify the FCM of any arrests; allow the FCM to see the child

      and home; enroll in courses recommended by the FCM; keep all appointments;

      obtain suitable housing and stable income; avoid drugs, alcohol, and illegality;

      submit to random drug screens; and attend all scheduled visitations with Child.


[6]   Mother was also ordered to comply with the terms of probation stemming from

      previous convictions. In September 2007, she had been convicted of theft as a

      Class D felony. Her violations of the terms of probation associated with this

      first conviction had already been dismissed pursuant to a plea agreement

      regarding a second conviction, this time for Class B felony dealing in a

      controlled substance in May 2011. Before the June 2014 dispositional decree




      Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017   Page 3 of 9
      was entered, Mother had already violated her new terms of parole and, on

      March 19, 2014, had been sentenced to sixty days in jail.


[7]   Mother’s participation in services has been inconsistent, perhaps owing to the

      nearly fifteen months she spent in jail between Child’s removal in February

      2014 and the eventual termination of parental rights (TPR) hearing held on

      May 2, 2016. Even when she was not in jail, she did not consistently

      participate in services, attend her random drug screens, remain drug free, or

      maintain contact with DCS. She also failed to attend many of her scheduled

      visitations with Child.


[8]   Likewise, Father did not participate in services. DCS recommended drug

      therapy, but he has not met with a therapist or caseworker since July 2014.

      DCS referred him to another substance abuse evaluation, but he was discharged

      from the program in April 2015 because of his noncompliance. Since the

      dispositional decree, Father has continued to use drugs, to drink, and has tested

      positive for methamphetamine as recently as one month before the termination

      hearing. Father has only visited Child thirteen times during the pendency of the

      CHINS case, and Child does not recognize him as a father figure. On one

      occasion, Child threw a tantrum because he wanted to be returned to his

      relative caregiver. At the TPR hearing, Father was unable to remember Child’s

      birthdate.


[9]   Neither Mother nor Father will be in a position to care for Child in the

      immediate future. On August 21, 2015, Mother’s probation was revoked after


      Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017   Page 4 of 9
       failing a drug screen and having contact with Father. She was sentenced to four

       years imprisonment, with the last six months to be served at a halfway house.

       She is currently in prison, scheduled to be released in August 2017. Father has

       been unable to maintain housing through the entire pendency of the CHINS

       case and is currently living with his brother.


[10]   On August 31, 2015, DCS filed a petition seeking the termination of Parents’

       rights. On May 2, 2016, the trial court held a TPR hearing. An FCM testified

       that Parents were not likely to fix their substance abuse issues because they had

       failed to demonstrate any long-term change in the entire two-year CHINS case.

       Another FCM noted that Mother has only been able to maintain sobriety while

       incarcerated, and so would likely relapse upon her release. A court appointed

       special advocate (CASA) likewise opined that Parents would not be able to

       provide Child with a safe and stable home. Both FCMs testified that

       termination would be in Child’s best interest, as his current caregivers would

       like to adopt him.


[11]   On June 7, 2016, the trial court ordered that Parents’ parental rights be

       terminated. It denied DCS’s motion to issue findings of fact and conclusions of

       law, but issued a series of both sua sponte. The termination order stressed

       Parents’ repeated incarcerations and drug abuse, and noted that neither would

       be in a position to take care of Child in the immediate future. While

       acknowledging that Parents were currently expressing the desire to turn their

       lives around, the trial court found that Parents “have made a conscious decision



       Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017   Page 5 of 9
       to not make any attempt to comply with the terms of the Dispositional Decree.”

       Appellant’s App. p. 47. Parents now separately appeal.


                                    Discussion and Decision
[12]   Both Parents argue that the evidence is not sufficient to support the trial court’s

       decision. Mother also argues that the trial court’s findings of fact do not

       support its judgment.


[13]   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.


[14]   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:


       Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017   Page 6 of 9
                 (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:


                 (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




Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017   Page 7 of 9
                (D) that there is a satisfactory plan for the care and treatment of
                the child.


       DCS must prove the alleged circumstances by clear and convincing evidence.

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


[15]   Father argues that there is not sufficient evidence to prove that termination is in

       the best interests of Child. Mother argues the same and also argues that there is

       insufficient evidence to prove that there is a reasonable probability that the

       conditions that resulted in Child’s removal will not be remedied.


[16]   Child was removed from Parents in February 2014 based, in part, on Parents’

       abuse of drugs. Child had been dropped off, covered from head to toe in feces,

       at a relative’s house so that Parents could go to the hospital; once Parents were

       there, they were so intoxicated that they could not communicate or stop

       shaking. Both have failed to complete the substance abuse classes offered

       during the CHINS case and both have admitted to continued drug use. Indeed,

       Mother is currently in prison because her probation was revoked after she failed

       a drug screen, and Father tested positive for methamphetamine use just one

       month prior to the termination hearing. Given that Child was removed due to

       Parents’ drug use, and that Parents were either imprisoned for drug use or

       currently using drugs at the termination hearing more than two years later,

       there was sufficient evidence that the condition that led to Child’s removal will

       not be remedied. And the same evidence regarding Parents’ inability to stop

       abusing drugs also suffices to show that termination was in the best interests of

       Child.
       Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017   Page 8 of 9
[17]   Mother attempts to analogize her situation to cases that have held that the

       evidence supporting a TPR is insufficient where the trial court’s findings focus

       on historical shortcomings while ignoring changed conditions, In re C.M., 960

       N.E.2d 169, 175 (Ind. Ct. App. 2011); or that incarceration alone is an

       insufficient basis for terminating parental rights, In re G.Y., 904 N.E.2d 1257,

       1264-66 (Ind. 2009); or that a parent’s rights “may not be terminated solely

       because there may be a better home available for that child.” In re R.A., 19

       N.E.3d 313, 321 (Ind. Ct. App. 2014).


[18]   We do not find these cases analogous to Mother’s situation. While C.M. held

       that a trial court cannot ignore changed conditions, the trial court here noted

       that Mother is presently incarcerated for failing a drug screen. Nor did the

       court terminate Mother’s rights due solely to her incarceration; her present

       incarceration for failing a drug screen indicates that there is a reasonable

       likelihood that she will not be able to remedy her substance abuse issues. And

       the trial court did not terminate her rights solely because there was a better

       home available for Child. Child was removed from Parents’ home because of

       their abuse of drugs; more than two years later, after failing to take advantage of

       classes and therapy offered by DCS, Mother was in jail for failing a drug screen

       and Father was still testing positive for methamphetamine use. The evidence is

       sufficient to support the trial court’s order terminating Parents’ parental rights.


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


       Mathias, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017   Page 9 of 9
