MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing
                                                                    Aug 21 2017, 5:45 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                        CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah K. Shepler                                       Curtis T. Hill, Jr.
Sullivan, Indiana                                        Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         August 21, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of: B.H., C.H., & L.W., Minor                            77A05-1702-JT-324
Children,                                                Appeal from the Sullivan Circuit
J.M.H., Mother,                                          Court
                                                         The Honorable Robert E. Hunley,
Appellant-Respondent,
                                                         II, Judge
        v.                                               The Honorable Robert E. Springer,
                                                         Magistrate
Indiana Department of Child                              Trial Court Cause Nos.
Services,                                                77C01-1607-JT-40
                                                         77C01-1607-JT-41
Appellee-Petitioner.                                     77C01-1607-JT-42




Najam, Judge.


Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017        Page 1 of 13
                                         Statement of the Case
[1]   J.M.H. (“Mother”) appeals the trial court’s termination of her parental rights

      over her minor children B.H., C.H., and L.W. (collectively “Children”).

      Mother1 raises a single issue for our review, namely, whether the State

      presented sufficient evidence to support the termination of her parental rights.

      We affirm.


                                   Facts and Procedural History
[2]   In June 2013, the Department of Child Services (“DCS”) investigated a report

      that the Children were victims of neglect. On June 5, DCS filed a petition with

      the trial court in which DCS alleged that the Children were children in need of

      services (“CHINS”). At a hearing on June 26, Mother admitted to the

      allegations in the CHINS petition, namely, that she had failed to supervise the

      Children.2 The trial court adjudicated the Children to be CHINS based on

      Mother’s admission. On July 24, the court found that Mother needed

      assistance with, among other things, general parenting skills, housing, finding

      employment or suitable income, drug and alcohol issues, maintaining the

      home, and fulfilling her obligations as a parent. The trial court ordered Mother

      to comply with a parental participation order that required Mother to stay in




      1
        The biological father of C.H. and B.H. is deceased. The biological father of L.W. voluntarily terminated
      his parental rights and, therefore, does not join in this appeal.
      2
        DCS presented evidence that on one occasion C.H. “was permitted to have a boy in her bedroom who
      performed oral sex on [her] while mother was in the house” and that Mother was “passed out leaving the
      other two children unsupervised.” Ex. 7 at 1.

      Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017           Page 2 of 13
      regular contact with the Family Case Manager (“FCM”) and to keep all

      appointments with the FCM, complete a substance abuse assessment, and

      complete a parenting assessment. The trial court also ordered Mother to

      abstain from using illegal controlled substances. At that time, the Children

      remained with Mother.


[3]   One week later, on July 31, the trial court removed the Children from Mother’s

      care after Mother had tested positive for methcathinone and THC. On

      December 4, the trial court returned B.H. and L.W. to Mother’s care due to

      Mother’s compliance with services and random drug screens. On March 18,

      2015, the trial court returned C.H. to Mother’s care.


[4]   On June 29, the trial court again removed the Children from Mother’s care

      because Mother: failed on several occasions to contact DCS to determine

      whether she was required to submit to drug screens; failed to seek DCS

      approval before allowing others to have significant and extended contact with

      the Children; and failed to report to DCS that C.H. had harmed herself while

      under Mother’s care and supervision. In September 2015, Mother was arrested

      for a DUI and released on bond. She was arrested again in October 2015 and

      remained in jail until January 2016. After her release, Mother violated the

      terms of her probation in February 2016 and was incarcerated.


[5]   Mother did not successfully complete her court-ordered services in the CHINS

      matter, and, on July 11, 2016, DCS filed petitions to terminate her parental




      Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017   Page 3 of 13
rights as to each child. Following a hearing, the trial court found and

concluded in relevant part as follows:


        1.       Child[ren] and Mother have a history with DCS.


        2.    A prior CHINS case was opened in 2008 with Mother and
        Child[ren] due to Mother’s substance abuse while caring for
        Child[ren].


        3.    Mother failed to complete services in the prior CHINS
        case and it was dismissed in 2011 due to a guardianship with
        grandmother.


        4.     At some point between 2011 and 2013[] guardianship was
        dissolved and Child[ren] w[ere] returned to Mother.


                                            ***


        9.     From June 2015 to present, Mother failed to participate in
        services.

        10. Since June 2015, Child[ren] ha[ve] not returned to
        Mother’s care.

        11. Even though Mother was listed as compliant from
        December 2013 to June 2015, Mother failed to progress in
        services.

        12. Mother also failed to consistently take Child[ren] to
        therapy or case management appointments.

        13. Mother completed a substance abuse program[] but tested
        positive for illegal substances after completion.




Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017   Page 4 of 13
        14. Mother attended and recited information during case
        management; however, Mother lacked follow-through and made
        no progress in treatment.

        15. Mother attended and cooperated in home-based therapy to
        address emotional regulation, cope with intense emotions,
        improve parenting skills, improve relationships and repair
        functioning ability.

        16. While Mother appeared to be processing information
        learned during home-based therapy, Mother had inconsistencies
        in utilizing skills.

        17. Mother began resisting treatment in home-based therapy
        in 2015 and did not make compliance a priority.

        18. Mother relied on others to provide stability in her life[] but
        was never able to maintain relationships and supports due to
        conflict.

        19. Mother had several boyfriends, friends, acquaintances, and
        family in and out of her home while Child[ren] w[ere] in her
        care.

        20. Mother consistently failed to notify DCS of unauthorized
        people residing in her home, which created an unsafe and
        unstable home for Child[ren].

        21. Mother claims Child[ren] . . . were never harmed by the
        presence of people in and out of the home; however, [L.W.] was
        raped while people in Mother’s home were under the influence of
        illegal substances.

        22. Additionally, during the CHINS case, [C.H.] cut herself
        due to Mother forcing them to stay overnight at a stranger’s
        home.

        23. Mother is still unable to provide a safe and stable home for
        Child[ren] as she continues to have unknown people in her
        home; Mother also remains dishonest about people in her home.



Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017   Page 5 of 13
        24. Mother has difficulty taking ownership for her actions and
        has a pattern of blaming others.

        25. Even as recent as November 2016, Mother continues to
        blame others and make excuses for her situation.

        26. Mother’s inability to regulate her emotions caused a
        decrease in structure and made her emotionally unavailable for
        Child[ren] and Child[ren]’s needs.

        27. Mother’s emotional issues affected Child[ren] and caused
        an increase in negative behaviors and anxiety.

        28. Visitation between Mother and Child[ren] was chaotic and
        frequently ended early due to cussing, arguing, put-downs and
        blaming others.

        29. Mother no showed several visits and consistently appeared
        late for visits she did attend; therefore, Mother was required to
        call an hour in advance of visits.

        30. During visits, Mother regularly discussed inappropriate
        topics and focused on her issues rather than Child[ren].

        31. Mother wanted to be a friend to Child[ren], instead of a
        parent.

        32. Mother was unable to control Child[ren]’s behaviors and
        required intervention from the visitation supervisor.

        33. Although she required intervention, Mother was not
        receptive to parenting suggestions from the visitation supervisor.

        34. Despite efforts made by DCS and providers, services have
        not been successful for Mother as she has failed to improve her
        ability to parent Child[ren] and has not demonstrated change to
        remedy reasons for initial and continued removal.

        35. The mother is unable to maintain any level of consistency
        and stability.



Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017   Page 6 of 13
        36. Mother was incarcerated for multiple periods of time from
        September 2015 to November 2016; however, [M]other had the
        opportunity to participate in services prior to incarceration,
        during authorized releases, and after release from incarceration.

        37. Mother was released from incarceration in September
        2015 and was rearrested in October 2015.

        38. Mother was released in January 2016 to attend Freebirds,
        an inpatient treatment facility.

        39. While at Freebirds, Mother violated the terms of her
        probationary license and was arrested after approximately one (1)
        month.

        40.      Mother failed to successfully complete Freebirds program.

        41. Mother has a history of criminal convictions and
        probation revocations, including: Operating a Vehicle with a
        BAC of .08 (2008), Possession of Methamphetamine (2008 &
        2009), Failure to Stop After an Accident Resulting in Damage
        (2009), and Operating a Vehicle While Intoxicated Endangering
        a Person (2012 & 2015).

        42. Mother still has a criminal case pending in Clay County,
        Indiana; trial is set in February 2017.

        43. Throughout the entire case, Mother’s parenting lacked
        structure, routine, and consistency.

        44. Child[ren]’s behaviors were exacerbated due to lack of
        structure and Mother’s home had no structure.

                                                ***

        57. The [C]hild[ren] ha[ve] been removed from the parental
        home for at least six months under a Dispositional Decree.

        58. The [C]hild[ren] ha[ve] been removed from the parental
        home for at least fifteen (15) months of the most recent twenty-
        two (22) months.


Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017   Page 7 of 13
              59. GAL, Courtney Robison, agrees that it is in Child[ren]’s
              best interest for termination of parental rights and adoption and
              that continuing the parent-child relationship[s] between Mother
              and Child[ren] would be harmful to Child[ren].

              60. [C.H.], age seventeen (17) years old, believes termination
              of parental rights is in Child[ren]’s best interests.

              61.      DCS’ plan for [B.W. and L.H.] is that [they] be adopted.

              62. Adoption would provide permanency for the child[ren] in
              a safe and stable environment and is found to be satisfactory.

      Appellant’s App. Vol. II at 23-26 (citations omitted).3 DCS’ plan for C.H. is

      Another Planned Permanency Living Arrangement (“APPLA”). The trial

      court also determined that “APPLA would provide permanency for [C.H.] in a

      safe and stable environment and is found to be satisfactory.” Appellant’s App.

      Vol. II at 36. On January 10, 2017, the trial court granted DCS’ petition for

      termination of parental rights. This appeal ensued.


                                       Discussion and Decision
[6]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

      trans. denied. However, a trial court must subordinate the interests of the




      3
        We have quoted from the trial court’s order on Mother’s rights over B.H., but, because the court issued
      nearly identical, albeit separate, orders on Mother’s rights over C.H. and L.W., we have consolidated the
      court’s language to refer to all the Children.

      Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017            Page 8 of 13
      parents to those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750

      N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

      relationship is proper where a child’s emotional and physical development is

      threatened. Id. Although the right to raise one’s own child should not be

      terminated solely because there is a better home available for the child, parental

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

      her parental responsibilities. Id. at 836.


[7]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


              (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.

                                                      ***

              (C) that termination is in the best interests of the child; and

              (D) that there is a satisfactory plan for the care and treatment of
              the child.




      Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017   Page 9 of 13
      Ind. Code § 31-35-2-4(b)(2) (2017). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


[8]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

      Family & Children (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 that

      are most favorable to the judgment. Id. Moreover, in deference to the trial

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

      judgment terminating a parent-child relationship only if it is clearly erroneous.

      Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999), trans. denied.


[9]   Here, in terminating Mother’s parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

      2005). First, we determine whether the evidence supports the findings and,

      second, we determine 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,

      102 (Ind. 1996). If the evidence and inferences support the trial court’s

      decision, we must affirm. In re L.S., 717 N.E.2d at 208.

      Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017   Page 10 of 13
[10]   Mother challenges the sufficiency of the evidence to show 1) that there is a

       reasonable probability that the conditions that resulted in the Children’s

       removal or the reason for placement outside the home will not be remedied and

       2) that there is a reasonable probability that the continuation of the parent-child

       relationships poses a threat to the well-being of the Children. We address the

       sufficiency of the evidence supporting the trial court’s conclusion that there is a

       reasonable probability that the conditions that resulted in the Children’s

       removal or the reasons for placement outside the home will not be remedied.4


[11]   In determining whether the evidence supports the trial court’s finding that

       Mother was unlikely to remedy the reasons for the Children’s removal, we

       engage in a two-step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4

       N.E.3d 636, 643 (Ind. 2014). “First, we identify the conditions that led to

       removal; and second, we determine whether there is a reasonable probability

       that those conditions will not be remedied.” Id. (quotations and citations

       omitted). In the second step, the trial court must judge a parent’s fitness to care

       for her children at the time of the termination hearing, taking into consideration

       evidence of changed conditions. Id. However, the court must also “evaluate

       the parent’s habitual patterns of conduct to determine the probability of future

       neglect or deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894

       N.E.2d 218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted).



       4
         Because the statute is written in the disjunctive and we affirm the court’s judgment on this issue, we need
       not address the court’s additional conclusion that continuation of the parent-child relationships poses a threat
       to the Children’s well-being. I.C. § 31-35-2-4(b)(2).

       Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017             Page 11 of 13
       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. Id. Moreover,

       DCS is not required to rule out all possibilities of change; rather, it need

       establish only that there is a reasonable probability the parent’s behavior will

       not change. Id.


[12]   Mother does not challenge the trial court’s findings on this issue, and we cannot

       say that the trial court clearly erred when it concluded from those findings that

       the conditions that resulted in the Children’s removal from Mother’s care will

       not be remedied. As DCS notes, Mother and Children have a child welfare

       history going back to at least 2008. The Children have been CHINS since 2013.

       The Children were removed from Mother’s care due to Mother’s failure to

       supervise the Children and her drug use. Yet, despite the intervention of the

       trial court in the CHINS proceedings, Mother has not remedied those issues.

       Mother attended the home-based therapy sessions from June 2013 until mid-

       2015; however, according to the therapist who provided the home-based

       therapy sessions, she was unable to apply what she had learned. Mother’s

       attendance and compliance at those sessions slowed in mid-2015 and then

       stopped entirely when she was incarcerated in September of 2015.

       Additionally, Mother repeatedly failed to comply with the requirement to notify

       the FCM when Mother had certain people staying in the house with the

       Children. Mother also continued to test positive for illegal drugs after

       completing a drug abuse class.


       Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017   Page 12 of 13
[13]   It should also be noted that the Children are thriving outside of Mother’s care.

       C.H. testified that B.H. and L.W. are “completely different children” and that

       they are “outstanding” and “the happiest” that she has ever seen them. Tr. at

       82-83. C.H. further testified that the Children are now all “doing the best that

       we have ever done.” Tr. at 83.


[14]   Mother’s arguments on appeal simply seek to have this court disregard the

       evidence most favorable to the trial court’s judgment and instead reweigh the

       evidence in her favor, which we cannot do so. We cannot say that the trial

       court clearly erred when it concluded that the conditions that resulted in the

       Children’s removal will not be remedied. As such, we affirm the court’s

       termination of Mother’s parental rights.


[15]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 77A05-1702-JT-324 | August 21, 2017   Page 13 of 13
