MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Feb 18 2020, 8:11 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 APPELLANT K.S.                               ATTORNEYS FOR APPELLEE
Cynthia Phillips Smith                                    Curtis T. Hill, Jr.
Law Office of Cynthia P. Smith                            Attorney General
Lafayette, Indiana
                                                          Katherine A. Cornelius
ATTORNEY FOR APPELLANT K.B.-K.                            Deputy Attorney General
                                                          Indianapolis, Indiana
Steven Knecht
Vonderheide & Knecht, P.C.
Lafayette, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          February 18, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of K.B. (Minor                               19A-JT-2126
Child)                                                    Consolidated Appeal from the
and                                                       Tippecanoe Superior Court
                                                          The Honorable Faith A. Graham,
K.S. (Mother) and K.B.-K.                                 Judge
(Father),
                                                          Trial Court Cause No.
Appellants-Respondents,                                   79D03-1902-JT-16

        v.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020             Page 1 of 16
      Indiana Department of Child
      Services,
      Appellee-Petitioner



      Crone, Judge.


                                              Case Summary
[1]   K.S. (“Mother”) and K.B.-K. (“Father”) (collectively “Parents”) appeal the trial

      court’s order involuntarily terminating their parental rights to their minor child,

      K.B. (“Child”). Finding no error, we affirm.


                                  Facts and Procedural History
[2]   Parents are the biological parents of Child, who was born in February 2012. In

      August 2017, the Indiana Department of Child Services (“DCS”) received a

      report alleging neglect due to Mother’s substance abuse. Mother, who was

      living with a friend, submitted to an oral drug screen that came back negative.

      Mother consented to a hair drug screen for Child, which came back positive for

      methamphetamine. Father could not be located. Child was placed in

      protective custody, and DCS filed a petition alleging that Child was a child in

      need of services (“CHINS”). By the time of the CHINS factfinding hearing in

      October 2017, both Mother and Father had tested positive for

      methamphetamine. The trial court found that Child was a CHINS. In

      December 2017, the trial court issued a dispositional order pursuant to which

      Mother was offered “substance abuse assessment and treatment, case

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 2 of 16
      management, random drug screens, and parenting time[,]” and Father was

      offered “clinical interview/mental health assessment, substance abuse

      assessment and treatment, random drug screens, and parenting time.”

      Appealed Order at 2, 3.


[3]   In February 2019, DCS filed petitions to terminate Parents’ parental rights. A

      two-day factfinding hearing was held in April 2019. In July 2019, the trial court

      issued an order containing the following relevant findings and conclusions: 1


                                             FINDINGS OF FACT


                 ….

                 5. …. Child has been placed outside the home for more than
                 fifteen (15) of the most recent twenty-two (22) months.

                 ….

                 9. Mother completed a substance use assessment but failed to
                 attend recommended treatment. During the CHINS
                 proceedings, Mother tested positive for the presence of drugs on
                 08/20/2018 (amphetamine and methamphetamine), 08/28/2018
                 (amphetamine and methamphetamine), and 08/29/2018
                 (amphetamine and methamphetamine). Mother failed to submit
                 to all drug screens as requested.

                 10. Mother’s criminal history includes Possession of
                 Methamphetamine and Dealing in Methamphetamine. During
                 the CHINS case, Mother was incarcerated from May 2018 [sic]




      1
          We have replaced references to the parties’ names and initials with the aforementioned designations.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020                  Page 3 of 16
        to April 2018. Mother was again incarcerated at the end of
        September 2018 and remains incarcerated to date. Mother’s
        earliest release date is May 7, 2019. However, Mother is
        awaiting sentencing on a Petition to Revoke Probation.

        11. Mother failed to maintain contact with DCS and failed to
        consistently participate in services when not incarcerated.
        Mother’s last participation in any services was April 2018.
        Mother was found in contempt on July 31, 2018.

        12. In October 2018, Mother expressed a desire to consent to
        adoption. Mother executed documents consenting to Child’s
        adoption on November 29, 2018. Mother admitted a long
        history of substance use and incarceration which has not been
        addressed.

        13. Nevertheless, Mother does not support termination of
        Father’s parental rights. Mother acknowledges that Father
        continues to use marijuana and has failed drug screens for
        suboxone and opiates. However, Mother reports no safety
        concerns for Child in Father’s care.

        14. Father is twenty-four (24) years of age and has been
        incarcerated most of Child’s life. Father was arrested in
        September 2012 for Dealing a Schedule IV Controlled Substance
        for which he was sentenced to eight (8) years’ incarceration.
        Father was initially released in 2014 after which he used
        marijuana and was returned to incarceration for another eighteen
        (18) months. Father was again released for only one (1) month
        before returning to incarceration for failure to update his address.
        Father was released in March 2016 on parole which he
        completed in August 2017. Father was charged with Possession
        of Spice in April 2016 and convicted. Father was initially placed
        on Home Detention but was transferred to Work Release after
        law enforcement was dispatched to Father’s home regarding a
        domestic dispute. Father is currently on unsupervised probation.
        Father also reported an obstruction of justice charge for eating

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 4 of 16
        marijuana.

        15. Father was in a car accident resulting in a broken hand,
        tailbone, and back. Father also suffered other broken bones as a
        child. Father admits using illegal substances to manage stress
        and cope with pain. Father tested positive for suboxone or
        opiates throughout [the] CHINS case. Father has no prescription
        for suboxone. Prior to the CHINS case, Father never attempted
        substance abuse treatment with the exception of a few drug
        classes in prison.

        16. Father completed a substance use assessment in October
        2017. Father reported his drug of choice is marijuana and that he
        started using marijuana at age twelve (12) and continued until
        incarceration in 2012. Father was in and out of incarceration
        from 2012 to 2017. Father continued marijuana use after release
        from incarceration in 2017. Father also reported past use of
        spice, klonopin, Xanax, and hydrocodone without a prescription.
        Father reported a prior diagnosis of ADHD and Bipolar Disorder
        for which Father was prescribed Adderall, Vyvanse, and
        Concerta. However, Father ceased taking prescriptions in favor
        of self-medication with marijuana. Father reported no problem
        with current substance use. Father was diagnosed with
        Marijuana Use Disorder. It was recommended that Father
        participate in services and develop a relapse prevention plan.
        Father reported he could quit using drugs if he needed to quit or
        wanted to quit. However, Father failed to do so even when
        reunification with Child was at stake. At the time of the
        termination hearing, Father admitted he would likely test
        positive for marijuana.

        17. During the CHINS proceedings, Father tested positive for
        the presence of drugs [i.e., methamphetamine, amphetamine,
        alcohol, marijuana, buprenorphine, and/or opiates on
        approximately three dozen occasions between August 2017 and
        January 2019]. Other drug screen results through January 2019
        were negative however, he failed to take any drug screens as

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 5 of 16
        ordered since January 2019.

        18. Father was referred for individual therapy in December
        2017. However, Father failed to attend as recommended despite
        constant reports of stress. Father has completed no other
        substance abuse treatment and continues to use illegal
        substances.

        19. Father was referred for case management services in October
        2017 but did not begin until March 2018. At that time, Father
        had housing and worked with a landlord to relocate to a new
        trailer due to structural issues. Father was initially unemployed
        but obtained a job and established a budget. Father had a
        working knowledge of community resources. Father was
        discharged from services at the end of November 2018 for lack of
        recent engagement.

        20. Father resumed case management services in January 2019.
        Father has attended only six (6) of thirteen (13) scheduled
        sessions. Father maintained housing. Father acknowledges
        eviction proceedings filed but denies any orders for eviction.
        Father obtained a driver’s license permit, utilizes the bus system,
        and drives a registered moped. Father established a sustainable
        budget having recently changed employment for increased pay.

        21. Father married his wife, Kendra, in June 2017. Father
        reports marital struggles resulting in a separation. Father’s wife
        and their infant son have been residing with the wife’s mother in
        Monticello since January 2019. Father’s wife is diagnosed with
        PTSD and does not always take medication as prescribed.
        Father admits law enforcement has been involved several times.

        22. In October 2017, law enforcement responded to Father’s
        residence for a fight with his wife. Father was observed with a
        greenish bruise and a scratch near his eyebrow. On January 22,
        2018 law enforcement again responded to Father’s home for a
        fight with his wife at which time paraphernalia was located at the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 6 of 16
        home. On April 18, 2018, law enforcement responded to
        Father’s home for another domestic dispute. On September 26,
        2018, another domestic disturbance occurred at which time
        Father’s newborn son was reportedly present. Service providers
        alerted DCS of safety concerns with Father’s newborn infant
        including observation of blankets placed over the infant as a
        suffocation risk and bottles propped for feeding as a choking
        concern. Father’s infant son has not been removed from the care
        of his parents.

        23. On October 26, 2018, law enforcement again responded to
        another disturbance with the wife at which time Child was
        present. Shortly after, Father and his wife separated although the
        wife and newborn infant occasionally slept at Father’s home until
        the wife moved out completely in January 2019. Father denies
        any physical violence reporting that it was never proven, and he
        was never incarcerated. At the time of the termination hearing,
        Father stated he still loved his wife and that he “did not get
        married to get a divorce”.

        24. Father was referred to the Character Restoration program for
        domestic violence/anger management on three (3) separate
        occasions. Father did not commence Character Restoration until
        December 2018. Father attended only five (5) sessions and failed
        to complete the program. Father reported there is nothing to
        learn from the program due to the angry demeanor of the
        teacher. Father’s wife also did not attend as recommended.

        25. Father commenced parenting time in October 2017 which
        continues to date. Father’s parenting time occurs in the
        community and at Father’s home. Father is prepared with
        supplies during parenting time usually occurring three (3) times
        per week between 5:00PM and 8:00PM. Father’s interactions
        with Child are positive with an observable bond. Father supports
        Child’s education and uses appropriate discipline as needed.

        26. Father’s parenting time was initially fully supervised. On

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 7 of 16
        August 3, 2018, a visit ended early due to an argument between
        Father and his wife involving loud voices and the wife
        threatening to contact law enforcement if Father did not leave.
        Nevertheless, Father progressed to semi-supervised parenting
        time with drop-in monitoring only during overnight visits that
        occurred for approximately three (3) weeks in early October
        2018. However, in October 2018, a domestic violence incident
        occurred in Child’s presence resulting in increased supervision.

        27. Although Father has maintained employment and housing
        during the CHINS case, Father has failed to complete any service
        to address repeated substance use and domestic violence.

        28. CASA Staff Advocate, Leigh Ann Fricke, supports
        termination of parental rights in the best interests of Child.
        CASA noted Father[’s] lack of compliance with drug screens and
        failure to complete services to address substance use and
        domestic violence and Mother’s incarceration. CASA further
        noted that Father’s progress regressed when domestic violence
        incidents involving law enforcement began. CASA observed that
        neither parent is stabilized to the extent needed to provide for
        Child’s needs. Child participates in school-based case
        management and school-based counseling and performs well in
        school. Child is very active but is sometimes confused by her
        circumstances. Child is bonded with the kinship placement
        where she resides with her siblings. Child is adoptable even if the
        current placement is unable to adopt for any reason.


                                CONCLUSIONS OF LAW


        1. There is a reasonable probability the conditions that resulted
        in removal of Child from the care of the parents or the reasons
        for continued placement outside the home will not be remedied.
        Neither parent has successfully completed services to address
        substance abuse issues.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 8 of 16
               2. Continuation of the parent-child relationships poses a threat
               to the well-being of Child who needs stability in life. Child needs
               parents with whom she can form a permanent and lasting bond
               to provide for her emotional and psychological as well as
               physical well-being. Child’s well-being would be threatened by
               keeping her in parent-child relationships with either parent.
               Mother has failed to establish any stability and Father has failed
               to complete any services to address domestic violence.

              3. DCS has a satisfactory plan of adoption for the care and
              treatment of Child following termination of parental rights.
              Child can be adopted and there is reason to believe an
              appropriate permanent home has or can be found for Child with
              siblings. Mother has consented to adoption.

              4. For the foregoing reasons, it is in the best interests of Child
              that the parental rights of Mother and Father be terminated.


      Id. at 2-6. Parents now appeal. 2


                                       Discussion and Decision
[4]   “Parents have a fundamental right to raise their children—but this right is not

      absolute. When parents are unwilling to meet their parental responsibilities,

      their parental rights may be terminated.” Matter of Ma.H., 134 N.E.3d 41, 45-46

      (Ind. 2019) (citation omitted). A petition for the involuntary termination of

      parental rights must allege in pertinent part:




      2
       DCS does not specifically argue that Mother’s appeal is moot because she filed a consent to Child’s
      adoption, and Mother cites no authority for her suggestion that the consent was ineffective because it “was
      not admitted into trial in this case.” Mother’s Br. at 16. Absent any definitive indication that Child’s
      adoption has been finalized, we elect to address the merits of Mother’s appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020                Page 9 of 16
        (A) that one (1) of the following is true:


                 ….

                 (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.


Ind. Code § 31-35-2-4(b)(2).




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 10 of 16
[5]   DCS’s “burden of proof in termination of parental rights cases is one of ‘clear

      and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009)

      (quoting Ind. Code § 31-37-14-2). This heightened burden reflects termination’s

      “serious social consequences.” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014)

      (quoting id. at 1260 n.1). If the trial court finds that the allegations in a petition

      are true, the court shall terminate the parent-child relationship. Ind. Code § 31-

      35-2-8(a).


[6]   Our standard of review in termination cases is highly deferential. C.A. v. Ind.

      Dep’t of Child Servs., 15 N.E.3d 85, 92 (Ind. Ct. App. 2014).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
              of fact and conclusions thereon, we apply a two-tiered standard
              of review: we first determine whether the evidence supports the
              findings and then determine whether the findings support the
              judgment. In deference to the trial court’s unique position to
              assess the evidence, we will set aside a judgment terminating a
              parent-child relationship only if it is clearly erroneous.


      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

      do not support the trial court’s conclusions or the conclusions do not support

      the judgment.” In re A.G., 45 N.E.3d 471, 476 (Ind. Ct. App. 2015), trans.

      denied (2016). Unchallenged findings are accepted as true. McMaster v.

      McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997).




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 11 of 16
        Section 1 – The trial court did not clearly err in concluding
       that there is a reasonable probability that the conditions that
             resulted in Child’s removal will not be remedied.
[7]   Initially, Mother contends that the trial court clearly erred in concluding that

      there is a reasonable probability that the conditions that resulted in Child’s

      removal will not be remedied. In determining whether the conditions that

      resulted in a child’s removal will not be remedied, we perform a two-step

      analysis. E.M., 4 N.E.3d at 642-43. First, we identify the conditions that led to

      removal, and then “we ‘determine whether there is a reasonable probability that

      those conditions will not be remedied.’” Id. (quoting K.T.K. v. Ind. Dep’t of

      Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013)). Next, a parent’s fitness must

      be judged “as of the time of the termination proceeding, taking into

      consideration evidence of changed conditions—balancing a parent’s recent

      improvements against habitual patterns of conduct to determine whether there

      is a substantial probability of future neglect or deprivation.” Id. (citations,

      quotation marks, and alteration omitted). “We entrust that delicate balance to

      the trial court, which has discretion to weigh a parent’s prior history more

      heavily than efforts made only shortly before termination.” Id. “Requiring trial

      courts to give due regard to changed conditions does not preclude them from

      finding that parents’ past behavior is the best predictor of their future behavior.”

      Id.


[8]   Here, Child was removed from Mother because of neglect and Mother’s illegal

      drug use. Mother completed a substance abuse assessment but failed to attend


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 12 of 16
      treatment, failed to submit to all drug screens, and tested positive for illegal

      drugs on multiple occasions. Mother complains that “DCS failed to present

      any current evidence of [her] drug use during the trial in this matter.” Mother’s

      Br. at 12. Mother ignores the fact that she was incarcerated at the time of trial, 3

      was incarcerated during the CHINS proceeding, and failed to maintain contact

      with DCS and consistently participate in services when not incarcerated. She

      has a criminal history involving possession of and dealing in

      methamphetamine, and she was awaiting sentencing on a petition to revoke

      probation. Based on Mother’s longstanding drug and legal problems and lack

      of stability, we cannot conclude that the trial court clearly erred in determining

      that there is a reasonable probability that the reasons for Child’s removal will

      not be remedied.4


          Section 2 – The trial court did not clearly err in concluding
           that termination of Mother’s parental relationship is in
                             Child’s best interests.
[9]   Mother also contends that the trial court clearly erred in concluding that

      termination of her parental relationship is in Child’s best interests. To




      3
       Although the trial court did not make a specific finding on this point, we note that DCS permanency worker
      Shalonda Haskins testified that when Mother voluntarily relinquished her rights to another child at a hearing
      held earlier that day, she “indicate[d] that she was having a lot of problems over coming [sic] her drug
      problem” and that her seven months in jail was the “longest that she has been clean.” Tr. Vol. 2 at 112, 113.
      Mother’s failure to stay clean and avail herself of treatment when she was not incarcerated would not bode
      well for her prospects of remedying the conditions that led to Child’s removal.
      4
       Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not address Mother’s
      argument that the trial court clearly erred in concluding that there is a reasonable probability that
      continuation of the parent-child relationship poses a threat to Child’s well-being.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020              Page 13 of 16
       determine what is in a child’s best interests, the court must look at the totality of

       the circumstances. In re A.W., 62 N.E.3d 1267, 1275 (Ind. Ct. App. 2016). “In

       so doing, the court must subordinate the interests of the parents to those of the

       child involved.” In re S.K., 124 N.E.3d 1225, 1234 (Ind. Ct. App. 2019), trans.

       denied. “The trial court need not wait until the child is irreversibly harmed such

       that his physical, mental, and social development is permanently impaired

       before terminating the parent-child relationship.” Id. Although not dispositive,

       permanency and stability are key considerations in this regard. G.Y., 904

       N.E.2d at 1265. “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), trans. denied. “Further, the testimony of the service

       providers may support a finding that termination is in the child’s best interests.”

       S.K., 124 N.E.3d at 1234.


[10]   Mother’s only argument regarding Child’s best interests is that she “was not

       questioned about what she believed was in the best interest of her child.”

       Mother’s Br. at 17. No such questioning was required. The totality of the

       circumstances as documented by the trial court’s unchallenged findings,

       including CASA Fricke’s opinion that termination is in Child’s best interests,

       and Mother’s history of incarceration and substance abuse, amply support the

       trial court’s conclusion that termination of Mother’s parental relationship is in




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 14 of 16
       Child’s best interests. Accordingly, we affirm the trial court’s termination order

       as to Mother.


         Section 3 – The trial court did not clearly err in concluding
       that termination of Father’s parental relationship is in Child’s
                                best interests.
[11]   Father challenges only the trial court’s conclusion that termination of his

       parental relationship is in Child’s best interests. 5 He points to the progress that

       he has made in obtaining stable housing and employment and the bond that he

       has established with Child. But he disregards the CASA’s opinion that

       termination is in Child’s best interests, as well as the unchallenged findings

       regarding his longstanding (and ongoing) use of marijuana, methamphetamine,

       and other illegal drugs, even when reunification with Child was at stake; his

       failure to take drug screens after January 2019; and his failure to participate in

       services related to his substance abuse and domestic violence issues, which

       resulted in multiple instances of police involvement. 6 Looking at the totality of

       the circumstances, including Child’s need for permanency and stability and

       Father’s past and current inability to provide a suitable environment for Child,




       5
         Father states, “It is not enough that the conditions in the parent’s care be in need of improvement: the
       relationship must pose an actual threat to the child’s well-being.” Father’s Br. at 20. But Father does not
       specifically challenge the trial court’s conclusion that there is a reasonable probability that continuation of the
       parent-child relationship poses a threat to Child’s well-being.
       6
         Father states that “[t]he only evidence presented concerning domestic violence indicates that [he] was the
       victim” and that he “and his wife have since separated,” and therefore Child “would not be in her
       presence[.]” Father’s Br. at 18-19. Exposure to domestic violence is harmful to a child’s development
       regardless of the victim’s identity, and Father has not foreclosed the possibility of reuniting with his wife
       (who was also resistant to domestic violence counseling) at some point.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020                   Page 15 of 16
       we cannot conclude that the trial court clearly erred in determining that

       termination of Father’s parental relationship is in Child’s best interests.

       Therefore, we affirm the trial court’s termination order as to Father.


[12]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2126 | February 18, 2020   Page 16 of 16
