MEMORANDUM DECISION
                                                                     Feb 03 2015, 8:35 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Attorney for Mother D.S.                                  Gregory F. Zoeller
Phyllis J. Emerick                                        Attorney General of Indiana
Bloomington, Indiana
                                                          Robert J. Henke
Attorney for Father B.P.                                  James D. Boyer
Amy P. Payne                                              Deputies Attorney General
Bloomington, Indiana                                      Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 3, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of:                                                       53A01-1408-JT-337
T.P., K.P., and D.P., minor                               Appeal from the Monroe Circuit
children,                                                 Court; The Honorable Stephen R.
                                                          Galvin, Judge;
and                                                       53C07-1402-JT-81
D.S., Mother, and B.P., Father,                           53C07-1402-JT-82
                                                          53C07-1404-JT-182
Appellants-Respondents,

        v.

The Indiana Department of Child
Services,
Appellee-Petitioner.




May, Judge.

Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015      Page 1 of 11
[1]   D.S. (Mother) and B.P. (Father) (collectively, Parents) appeal the involuntary

      termination of their parental rights to T.P., K.P., and D.P. (collectively,

      Children). We affirm.


                      FACTS AND PROCEDURAL HISTORY
[2]   T.P. was born March 3, 2011, K.P. was born January 16, 2012, and D.P. was

      born February 11, 2013. On January 3, 2012, after complaints of substance

      abuse and domestic violence in T.P.’s presence, Parents entered into a court-

      approved Informal Adjustment Plan to address those issues. On March 29, the

      Department of Child Services (DCS) removed T.P. and K.P. from Parents’

      home after Parents left them with an intoxicated babysitter. On March 30,

      DCS filed petitions to adjudicate T.P. and K.P. as Children in Need of Services

      (CHINS) based on Parents’ substance abuse and domestic violence issues.


[3]   On August 2, Parents admitted to the allegations in the CHINS petitions and

      T.P. and K.P. were adjudicated as such. On September 10, the court entered a

      dispositional order, requiring Parents to participate in services such as couples

      counseling, parenting assessments, substance abuse screenings, and substance

      abuse treatment. On December 3, the court held a review hearing and found

      Parents had not complied with the requirements of the dispositional decree.


[4]   On February 11, 2013, D.P. was born. On February 14, D.P. was removed

      from Parents’ custody because Mother tested positive for marijuana while

      pregnant with D.P. and because of the pending CHINS case involving T.P. and

      K.P. On February 28, the court adjudicated D.P. a CHINS based on Parents’

      Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015   Page 2 of 11
      admissions to the CHINS allegations. On March 28, the court issued a

      dispositional order requiring Parents to participate in reunification services.


[5]   On February 19, 2014, DCS filed a petition to terminate Parents’ parental rights

      to T.P. and K.P. On April 8, DCS filed a petition to terminate Parents’ rights

      to D.P. The court held an evidentiary hearing on June 18 and on July 10,

      issued an order terminating parental rights.


                              DISCUSSION AND DECISION
[6]   We review termination of parental rights with great deference. In re K.S., D.S.,

      & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

      evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

      Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

      reasonable inferences most favorable to the judgment. Id. In deference to the

      juvenile court’s unique position to assess the evidence, we will set aside a

      judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      534 U.S. 1161 (2002).


[7]   When, as here, a judgment contains specific findings of fact and conclusions

      thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of

      Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine first

      whether the evidence supports the findings and second whether the findings

      support the judgment. Id. “Findings are clearly erroneous only when the

      record contains no facts to support them either directly or by inference.” Quillen

      Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015   Page 3 of 11
      v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences

      support the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at

      208.


[8]   “The traditional right of parents to establish a home and raise their children is

      protected by the Fourteenth Amendment of the United States Constitution.” In

      re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

      subordinate the interests of the parents to those of the child, however, when

      evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

      at 837. The right to raise one’s own child should not be terminated solely

      because there is a better home available for the child, id., but parental rights

      may be terminated when a parent is unable or unwilling to meet his or her

      parental responsibilities. Id. at 836.


[9]   To terminate a parent-child relationship, the State must allege and prove:

              (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.
                       (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 county office of family and children
                       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



      Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015   Page 4 of 11
                        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.
[10]   Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof

       of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

       denied. Because our legislature wrote subsection (B) in the disjunctive, a trial

       court needs to find only one of the three requirements established by clear and

       convincing evidence before terminating parental rights. In re L.S., 717 N.E.2d

       at 209. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[11]   Parents argue DCS did not present sufficient evidence to prove Ind. Code §§ 31-

       35-2-4(b)(2)(B)(i), (B)(ii), or (C).


                  1.      Remedy of Conditions Resulting in Children’s Removal

[12]   The trial court found the conditions that resulted in Children’s removal would

       not be remedied. In making such a determination, a trial court must judge a

       parent’s fitness to care for his or her child at the time of the termination hearing,

       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015   Page 5 of 11
       taking into consideration evidence of changed conditions. In re J.T., 742

       N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. It must evaluate the

       parent’s habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Pursuant to this rule, courts

       have properly considered evidence of a parent’s prior criminal history, drug and

       alcohol abuse, history of neglect, failure to provide support, and lack of

       adequate housing and employment. A.F. v. Marion Cnty. Office of Family &

       Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The trial

       court may also properly consider, as evidence of whether conditions will be

       remedied, the services offered to the parent by DCS, and the parent’s response

       to those services. Id. A trial court need not wait until a child is irreversibly

       influenced by a deficient lifestyle such that his or her physical, mental, and

       social growth are permanently impaired before terminating the parent-child

       relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002).


[13]   The trial court found:

               There is a reasonable probability that the conditions which resulted in
               the removal of the [C]hildren, or the reasons for placement outside the
               home of the parents, will not be remedied, and/or, the continuation of
               the parent-child relationship poses a threat to the well-being of the
               [C]hildren.
               In October, 2011, six month old [T.P.] was knocked to the floor during
               a fight between [Mother] and [Father]. They continued to fight while
               he lay crying on the floor. [Mother] was pregnant at the time.
               [Father] was arrested and ultimately convicted for [sic] battering
               [Mother].
               [T.P.] and [K.P.], then a new two months [sic] old, were removed
               from their parents’ care on March 29, 2012, after they were found with

       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015   Page 6 of 11
        a babysitter who was intoxicated. Their mother had gone out for
        cigarettes and never returned. [Mother] and [Father] admitted that the
        [C]hildren were Children in Need of Services.
        At the Dispositional Hearing on September 10, 2012, [Mother] and
        [Father] were ordered to participate in services to address their
        substance abuse and domestic violence issues. Despite being offered
        services, the pattern of domestic violence and substance abuse
        continued.
        On January 4, 2013, [Mother], then eight months pregnant, stabbed
        [Father] with a knife, puncturing his lung. [Father] was hospitalized
        for four days. [Mother] was arrested and ultimately convicted for [sic]
        Battery, a class C felony. [Mother] takes no responsibility for her acts.
        She describes the stabbing as a “scratch.” [Mother] admitted to
        smoking marijuana while pregnant with [D.P.]. [Father] also
        continued to use controlled substances.
        On March 23, 2013, [Mother] and [Father] were arrested during an
        argument with a security guard at a local skating rink. Both were
        drinking at the time of their arrest.
        After [Father] was released from jail in April, 2013, he made progress
        while on house arrest at a relative’s home. However he returned to
        live with [Mother] in October, 2013. Their participation in services
        immediately declined. On December 15, 2013, police were called to
        their home due to a domestic disturbance. They heard a woman
        scream “get off of me.” They kicked down the door. [Father] and
        [Mother] were both intoxicated. The apartment reeked of alcohol.
        Both were loud and argumentative. Both were arrested.
        On May 8, 2014, police were again called to [Mother’s] home
        following an argument between [Mother] and [Father]. [Mother] told
        Ms. Richardson [the home-based case manager] that she had a split lip
        and intimated that [Father] had caused the injury.
        Both parents have been offered extensive services for over two years.
        [Mother] and [Father] participated in Couples therapy with Vershawn
        Champion beginning in May, 2013. They did not benefit from the
        counseling. They minimize and excuse their behavior. Their primary
        relationship is with each other. Their relationship with [Children] is
        secondary. They do not understand how their actions adversely affect
        [Children]. They did not follow their Safety Plan when they relapsed
        in December, 2013. They were primarily focused on how to avoid
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015   Page 7 of 11
        detection when using and not on refraining from using. If one uses
        drugs or alcohol, both use. Ms. Champion notes that their relationship
        is “toxic.”
        [Mother] began individual therapy with Catherine Colbert in
        September, 2013. They were scheduled to meet weekly. By
        November, 2013, Ms. Colbert was having difficulty reaching [Mother].
        Following her relapse in December, [Mother] regularly attended
        therapy sessions in January, February, and March, 2014. However,
        she stopped attending therapy on March 14, 2014. [Mother] was
        resistant to therapy and refused to address her anger and domestic
        violence issues. She made little progress.
        Melissa Richardson attempted to offer home-based services to
        [Mother] beginning in January, 2013. She attempted to address issues
        such as housing, income, parenting skills, budgeting, resource
        acquisition, and assistance in meeting the goals of the case plan.
        However, [Mother] refused to acknowledge that she had problems that
        needed to be addressed. As Ms. Richardson testified, [Mother] has
        made no long-term changes in her behavior.
        [Mother] has failed to complete [Intensive Outpatient Program] at
        least three times since [T.P.] and [K.P.] were removed. She has no job
        and no source of income. Her rent is paid through a federal grant.
        [Father] ceased to participate in any services beginning in March,
        2014. Despite the overwhelming evidence to the contrary, [Father]
        denies that he has a drug problem or a problem with domestic
        violence.
        Although [Mother] and [Father] testified that they recently decided to
        separate, this testimony is not credible. For the past two years, despite
        the loss of [Children], repeat episodes of domestic violence, ongoing
        substance abuse and alcohol abuse, and repeated arrests, both have
        chosen to maintain their relationship. Clearly, their relationship
        means more to them than their own well-being and the well-being of
        [Children].
        Given the parents’ extensive history of substance abuse, domestic
        violence, and failed treatment, there is no reasonable probability that
        the conditions which resulted in the removal of [Children] will be
        remedied.



Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015   Page 8 of 11
                Further, the parents have repeated [sic] demonstrated that they will
                continue to use drugs and alcohol, and to engage in acts of domestic
                violence, even if this behavior endangers [Children]. They twice
                engaged in brutal altercations when [Mother] was pregnant. In 2011,
                they did not even stop fighting when six month old [T.P.] was knocked
                to the floor and was crying. In light of this pattern of violence and
                substance abuse, it is clear that continuation of the parent-child
                relationship poses a threat to the well-being of [Children].
[14]   (App. of Appellant D.S. at 8-10.)


[15]   Father argues he has “largely complied,” (Br. of Appellant B.P. at 7), with the

       requirements of the Dispositional Order, noting he completed an intensive

       outpatient substance abuse treatment program, attended couples counseling, is

       employed, and pays child support. However, he overlooks the domestic

       violence that occurred throughout the proceedings, which was one of the

       reasons for Children’s removal. Similarly, Mother argues she completed many

       of the required services, but does not acknowledge her admission that she will

       always be an alcoholic, or the fact that, despite three attempts at an intensive

       outpatient substance abuse treatment program, she has relapsed multiple times

       during the proceedings. Parents’ arguments are invitations for us to reweigh the

       evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate

       court cannot reweigh evidence or judge the credibility of witnesses). 1




       1
         Parents also argue DCS did not present sufficient evidence the continuation of the parent-child relationship
       posed a threat to the well-being of Children. However, as DCS presented sufficient evidence the conditions
       under which Children were removed would not be remedied, we need not address that argument. In re L.S.,
       717 N.E.2d at 209 (because statute written in disjunctive, court needs to find only one requirement to
       terminate parental rights).



       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015            Page 9 of 11
                                    2.      Best Interests of the Children

[16]   Pursuant to Ind. Code § 31-35-2-4(b)(1)(C), DCS must provide sufficient

       evidence “that termination is in the best interests of the child.” In determining

       what is in the best interests of a child, the trial court is required to look beyond

       the factors identified by DCS and to consider the totality of the evidence. In re

       J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In so doing, the trial court must

       subordinate the interests of the parent to those of the child. Id. The court need

       not wait until a child is harmed irreversibly before terminating the parent-child

       relationship. Id. Recommendations of the case manager and court-appointed

       advocate, in addition to evidence the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id. A parent’s historical inability to

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

       the same, supports finding termination of parental rights is in the best interests

       of the children. Lang v. Starke County Office of Family and Children, 861 N.E.2d

       366, 373 (Ind. Ct. App. 2007), trans. denied.


[17]   The trial court found and concluded:

               [T.P.] and [K.P.] are placed with their grandparents, [R.G.] and
               [D.G.]. They have spent most of their lives in this home. This is the
               only true home they have ever known. Their grandparents provide
               them with a safe and loving home. Although [D.P.] is in foster
               placement, he is in the process of transitioning to his grandparents’
               home.
               As noted above [in the findings of facts and conclusions of law
               regarding the probability that the conditions under which Children
               were removed would not be remedied and the continuation of the

       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015   Page 10 of 11
               parent-child relationship posed a risk to the well-being of Children],
               [Mother] and [Father] have demonstrated that they cannot provide
               [Children] with a safe and stable home.
               Clearly, termination of the parent-child relationship is in the best
               interests of [Children].
[18]   (App. of Appellant D.S. at 10-11.)


[19]   Parents both argue Children’s need for permanency, standing alone, “is not an

       adequate reason for termination of the parent-child relationship.” (Br. of

       Appellant B.P. at 15.) However, this argument ignores the court’s other

       findings regarding their substance abuse and domestic violence issues, and it is

       an invitation for us to reweigh the evidence, which we cannot do. See In re

       D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge the

       credibility of witnesses).


                                             CONCLUSION
[20]   DCS presented sufficient evidence the conditions that resulted in Children’s

       removal from Parents’ care would not be remedied and the termination of the

       parent-child relationship was in Children’s best interests. Accordingly, we

       affirm the termination of Parents’ parental rights to Children.


[21]   Affirmed.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-337 | February 3, 2015   Page 11 of 11
