MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jun 04 2020, 9:38 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
Kyle D. Gobel                                             Natalie F. Weiss
Collier Gobel Homann, LLC                                 Deputy Attorney General
Crawfordsville, Indiana                                   Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 4, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of O.A. (Minor Child) and Z.O.                            19A-JT-2788
(Father);                                                 Appeal from the Fountain Circuit
Z.O. (Father),                                            Court

Appellant-Respondent,                                     The Honorable Stephanie
                                                          Campbell, Judge
        v.                                                Trial Court Cause No.
                                                          23C01-1904-JT-42
Indiana Department of Child
Services,
Appellee-Petitioner



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020                       Page 1 of 14
[1]   Z.O. (“Father”) appeals the involuntary termination of his parental rights to

      O.O. (“Child”). He argues the trial court’s findings do not support its

      conclusions that the conditions under which Child was removed from Father’s

      care would not be remedied; that the continuation of the parent-child

      relationship posed a threat to the well-being of Child; and that termination was

      in Child’s best interests. We affirm.



                                Facts and Procedural History
[2]   Child was born to A.S. (“Mother”) 1 on August 22, 2016. Mother had primary

      custody of Child. On October 31, 2017, DCS filed a petition alleging Child was

      a Child in Need of Services because two members of Mother’s household had

      overdosed on illegal drugs and Child tested positive for methamphetamine via

      hair follicle screen. At the initial hearing the same day, Mother and Father

      denied the allegations in the CHINS petition, and Child remained in Mother’s

      care.


[3]   On November 7, 2017, DCS filed a request to remove Child 2 from Mother’s

      care based on Mother’s positive drug screen for methamphetamine. The trial

      court granted DCS’s request and ordered Child removed from Mother’s care

      and placed in foster care. Child was not placed with Father because he did not




      1
          Mother voluntarily relinquished her parental rights to Child and does not participate in this appeal.
      2
       Based on the trial court’s order it would seem Mother had another child who was also removed from her
      care at this time. However that child is not at issue in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020                         Page 2 of 14
      have appropriate housing and he tested positive for marijuana and Xanax, for

      which he did not have a prescription. On December 15, 2017, the trial court

      held a fact-finding hearing on DCS’s CHINS petition and both parents

      admitted Child was a CHINS. The trial court adjudicated Child as such on

      January 8, 2018.


[4]   The trial court held a dispositional hearing on January 9, 2018, and on June 22,

      2018, ordered Father to, among other things: contact the Family Case Manager

      (“FCM”) every week; enroll in any program recommended by the FCM or any

      other service provider within thirty days of that recommendation; keep all

      appointments with FCM and service providers or give advance notice and good

      cause for the missed appointment; maintain suitable, safe, and stable housing;

      secure and maintain a legal and stable source of income; refrain from using

      illegal substances or prescription medication for which he did not have a

      prescription; obey the law; submit to random drug screens; complete parenting

      and substance abuse assessments and follow all recommendations therefrom;

      and visit with Child. Father was considered the primary possibility for

      placement and reunification because Mother was “in and out of jail, continued

      heavy drug use and [did] not visit[] the Child even from the onset of the case.”

      (App. Vol. II at 16.)


[5]   Father participated in home-based case management from February 2018 until

      July 2018; he was discharged from the service in September 2018. Father

      regularly attended supervised visits with Child from November 2017 until

      August 8, 2018; Father has not seen Child since August 8, 2018. Father

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020   Page 3 of 14
      submitted random drug screens from November 2017 to May 2018. In May

      2018, the service provider suspended his drug screens because he failed to

      appear for three consecutive screens. The FCM restarted Father’s drug screens

      at least four times and stopped doing so in July 2018. Father regularly tested

      positive for marijuana. Father completed a substance abuse assessment in April

      2018, but he did not engage in the recommended treatment. Father did not

      engage in individual therapy despite being diagnosed with bipolar disorder.

      Father also did not contact the FCM from August 2018 to March 2019.


[6]   Based on Father’s noncompliance with services, the trial court changed the

      permanency plan from reunification to termination of parental rights and

      adoption. DCS filed a petition to terminate Father’s parental rights on April 8,

      2019. The trial court held fact finding hearings on June 28 and July 29, 2019.

      On November 18, 2019, the trial court terminated Father’s parental rights to

      Child.



                                 Discussion and Decision
[7]   We review termination of parental rights with great deference. In re K.S., 750

      N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

      the 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-child relationship only if it is clearly erroneous. In re L.S.,

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020   Page 4 of 14
      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S.

      1161 (2002).


[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 juvenile 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 in Indiana, DCS 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 19A-JT-2788 | June 4, 2020   Page 5 of 14
                               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). DCS 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.

       “[I]f the State fails to prove any one of these statutory elements, then it is not

       entitled to a judgment terminating parental rights.” Id. at 1261. Because

       parents have a constitutionally protected right to establish a home and raise

       their children, the State “must strictly comply with the statute terminating

       parental rights.” Platz v. Elkhart Cty. Dep’t of Pub. Welfare, 631 N.E.2d 16, 18

       (Ind. Ct. App. 1994).


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

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

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

       evidence supports the findings and 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 v. Quillen, 671 N.E.2d 98,

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020   Page 6 of 14
       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. Father does not

       challenge the trial court’s findings, and thus they stand proven. See Madlem v.

       Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge

       the findings of the trial court, they must be accepted as correct.”).


               1. Reasonable Probability Conditions Not Remedied
[11]   The juvenile court must judge parents’ fitness to care for their children at the

       time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.

       2010). Evidence of a pattern of unwillingness or lack of commitment to address

       parenting issues and to cooperate with services “demonstrates the requisite

       reasonable probability” that the conditions will not change. Lang v. Starke Cty.

       OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.


[12]   Regarding whether the conditions under which Child was removed would be

       remedied, the trial court found:


               6. Father has made minimal effort to complete court-ordered
               and recommended services.


               7. Father participated in home-based case management from
               February 2018 until July 2018 before he stopped engaging in this
               service and was unsuccessfully discharged in September 2018.
               The goals of home-based case management were to assist Father
               in obtaining and maintaining stable housing and employment,
               maintaining sobriety and obtaining community resources.


               8. Father participated very regularly in supervised visits with
               [Child] from November 2017 until August 8, 2018. Father
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020   Page 7 of 14
        received visitation twice per week for two to three hours each
        visit. The Court encouraged Father to engage in the services and
        maintain stable housing so that his visits could be increased and
        [a] trial home visit could begin. Father did well at visits,
        parenting appropriately and engaging with [Child]. The visit
        supervisor decreased supervision and the same was ordered upon
        Father’s engaging in services to ensure steps toward sobriety and
        stability.


                                              *****


        13. From November 2017 to May 2018, Father participated in
        random drug screens through Redwood. The FCM testified that
        Redwood suspends an individual’s screens when three
        consecutive screens were missed and that she had to restart
        Father’s screens at least four times from May 2018 to July 2018.
        The FCM testified that she would receive an email from
        Redwood when Father’s screens were suspended and that he
        would immediately respond to said email requesting to reinstate
        Father’s screens. The FCM testified that the last time she
        reinstated Father’s screens through Redwood was in July 2018.
        Father no showed for screens from May 25, 2018 to July 1, 2018.


        14. The FCM testified that Redwood will send a collector to the
        individual and that the collector will meet the individual at a
        location desired by the individual. Around the time Father
        became non-compliant with screens, he informed the FCM that
        he was now working in construction in Covington, Indiana, and
        that he was not permitted to screen on the job site. As a result,
        the FCM offered to start coming to Father’s home in Covington,
        Indiana, to screen him. The FCM testified that Father never
        indicated whether he would prefer to screen through Redwood or
        for the FCM to come screen him and that is why she continued
        to reinstate his screens through Redwood. While Father was
        completing random drug screens, the FCM testified that Father
        continued to test positive for THC.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020   Page 8 of 14
        15. Father stated he completed a substance abuse assessment in
        January 2018 but it was later found that he had not. Father did
        complete a substance use assessment in April 2018, after the first
        referral was cancelled due to non-compliance. The
        recommendation from the assessment was IOP and relapse
        prevention. Father did not begin or complete either
        recommendation. At the time of the conclusion of the
        termination fact finding hearing, Father has [sic] not engaged in
        any form of substance use treatment.


        16. Father has been diagnosed with bi-polar and testified that he
        was previously prescribed Metadate CE, Zoloft for depression
        and bi-polar, Xanax for anxiety and Clonidine for insomnia.
        Father testified that he is not receiving mental health treatment
        and has not been on medication since he was 18 years old but
        claims this is because he did not have medical insurance and was
        denied Medicaid. Despite Father testifying that his lack of
        participation in services was due to him not being in the right
        state of mind and “things spiraling out of control,” he stated that
        he does not believe being off his medications affects him. The
        FCM, after receiving the results of Father’s substance use/mental
        health assessment, did make a referral to Valley Oaks in May
        2018 for individual therapy to address issues of depression and
        past suicidal ideation. Kristina Stewart from Valley Oaks, who
        completed [F]ather’s substance use/mental health assessment
        testified that she was qualified to work with Father on mental
        health issues and that the facility has a psychiatrist who could
        prescribe psychiatric medications. Father was ordered to follow
        the recommendations of the mental health assessment to address
        his bi-polar and depression. Father never engaged in individual
        therapy.


        17. Father has not made any progress at this point towards
        reunification due to his noncompliance with services and
        continuing to test positive for THC. At a hearing on April 23,
        2019, Father tested positive for methamphetamine and THC on a

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020   Page 9 of 14
               hair screen. Although Father denied methamphetamine use, he
               admitted to still using marijuana.


                                                     *****


               24. Since [Child] was removed, Father has changed residences at
               least four times and changed employment approximately five
               times. There have been significant periods of time where
               Father’s location was unknown. At the time of the conclusion of
               the termination fact finding hearing, Father testified that he was
               unemployed, did not have transportation and was living in an
               unconverted garage of his brother’s home. Father further
               testified that he was unaware of any community resources that
               could assist him in supporting himself or [Child].


       (App. Vol. II at 16-19.)


[13]   Father argues the trial court erred when it determined the conditions under

       which Child was removed would not be remedied based his testimony

       regarding his “motivation and his specific plans to become stable and

       compliant” at the termination hearing. (Br. of Appellant at 17.) However,

       based on the amount of time Father has already had to participate in services

       and his failure to have done so thus far, we conclude we cannot leave Child in

       permanency limbo while giving Father another chance to participate in services

       and visitation. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989)

       (appellate court “unwilling to put [child] on shelf until [parents] are capable of

       caring for her appropriately”); see also Baker v. Marion Cty. OFC, 810 N.E.2d

       1035, 1040 n.4 (Ind. 2004) (limitations on trial court’s ability to approve long-

       term foster care are designed to ensure a child does not “languish, forgotten, in

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020   Page 10 of 14
       custodial limbo for long periods of time without permanency”) (quoting In re

       Priser, No. 19861, 2004 WL 541124 at *6 (Ohio Ct. App. March 19, 2004)).

       The trial court’s findings support its conclusion there is a reasonable probability

       the conditions resulting in Child’s removal will not be remedied. 3


                                        2. Best Interests of Child
[14]   In determining what is in Child’s best interests, a trial court is required to look

       beyond the factors identified by DCS and consider the totality of the evidence.

       In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). A parent’s historical

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

       inability to do so, supports finding termination of parental rights is in the best

       interests of the child. In re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002).

       The recommendations of a DCS case manager and court-appointed advocate to

       terminate parental rights, in addition to evidence that conditions resulting in

       removal will not be remedied, are sufficient to show by clear and convincing

       evidence that termination is in Child’s best interests. In re J.S., 906 N.E.2d at

       236.


[15]   Regarding Child’s best interests, the trial court found:




       3
         Because we hold the trial court’s findings supported its conclusion that the conditions under which Child
       was removed from Father’s care would not be remedied, we need not consider Father’s argument regarding
       whether the continuation of the parent-children relationships poses a risk to the Child’s well-being. See In re
       L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999) (because Indiana Code section 31-35-2-4(b)(2)(B) is written in
       the disjunctive, the court need find only one requirement to terminate parental rights), reh’g denied, trans.
       denied, cert. denied 534 U.S. 1161 (2002).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020                     Page 11 of 14
        18. Father has not seen nor had any contact with [Child] since
        August 8, 2018. Father has been represented by counsel at all
        stages of the CHINS proceeding. Since August 8, 2018 he has
        made no effort or attempts to contact the FCM, who has been
        assigned to the case since November 2017, to re-engage in
        services or to resume visitations with [Child]. Prior to [Child’s]
        removal and the commencement of the CHINS case, Father only
        visited with [Child] sporadically.


                                              *****


        23. CASA [Court Appointed Special Advocate] Elizabeth Daily,
        who has been appointed to the underlying CHINS case since
        November 2017, testified that she believes termination to be in
        [Child’s] best interest and that she does not believe Father has
        shown an ability to adequately care for [Child].


        25. [Child] has been in care for the last twenty (20) months.
        Father has had sufficient time and opportunities to make
        improvements and has not made any. Children need stability
        and continuity and Father has not shown that he is capable of
        providing those things or that he can maintain sobriety. Father
        demonstrated that he has the ability to parent [Child]. However,
        his lack of engagement or participation in the case for twelve
        months preceding the Fact-Finding in this matter establishes that
        he is not committed to being a parent for [Child]. Father’s lack
        of engagement or commitment to [Child] seriously affects her
        right to permanency and stability. Father has failed to commit to
        being a full time parent or demonstrate even the minimum
        commitment to parenting her throughout the CHINS case.


(App. Vol. II at 19-20.)




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020   Page 12 of 14
[16]   Father argues termination of his parental rights is not in Child’s best interests

       because he “has potential to be an effective Father [based on] Father’s obvious

       parenting skills and his level of motivation to improve[.]” (Br. of Appellant at

       19.) However, as stated earlier in our analysis, Father has thus far not availed

       himself of the services offered, and Child cannot wait indefinitely for him to do

       so. Further, the trial court is not obligated to consider Father’s future plan for

       improvement. See In re B.D.J., 728 N.E.2d 195, 202 n.1 (Ind. Ct. App. 2000)

       (parent’s “future plans were not evidence on which the trial court could base its

       opinion”). Based on the trial court’s findings regarding the other required

       factors coupled with the testimony of the CASA and other care providers, the

       trial court’s findings support its conclusion that it is in Child’s best interest to

       terminate Father’s parental rights. See In re T.F., 743 N.E.2d 766, 776 (Ind. Ct.

       App. 2001) (testimony of guardian ad litem and caseworker sufficient to

       support trial court’s findings and conclusion that termination was in child’s best

       interests), trans. denied.



                                                Conclusion
[17]   The trial court’s findings support its conclusions that the conditions under

       which Child was removed would not be remedied and that termination of

       Father’s parental rights was in Child’s best interests. Accordingly, we affirm

       the termination of Father’s parental rights.


[18]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020   Page 13 of 14
Robb, J., and Vaidik, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2788 | June 4, 2020   Page 14 of 14
