MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                       Jul 31 2018, 7:41 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
court except for the purpose of establishing                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
(FATHER)                                                  Curtis T. Hill, Jr.
Jennifer A. Joas                                          Attorney General of Indiana
Madison, Indiana                                          Abigail R. Recker
ATTORNEY FOR APPELLANT                                    Deputy Attorney General
(MOTHER)                                                  Indianapolis, Indiana
Leanna Weissmann
Lawrenceburg, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re the Termination of the                              July 31, 2018
Parent-Child Relationship of                              Court of Appeals Case No.
K.H. and J.H. (Minor Children);                           17A-JT-3047
T.B. (Mother) and J.H. (Father),                          Appeal from the Ripley Circuit
                                                          Court
Appellants-Respondents,
                                                          The Honorable Ryan J. King,
        v.                                                Judge
                                                          Trial Court Cause No.
The Indiana Department of                                 69C01-1706-JT-12
                                                          69C01-1706-JT-13
Child Services,
Appellee-Plaintiff.




Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018                  Page 1 of 14
      Pyle, Judge.


                                        Statement of the Case
[1]   Appellants, T.B. (“Mother”) and K.H. (“Father”) (collectively, the “Parents”),

      appeal the termination of the parent-child relationships with their children,

      (“K.H.” and “J.H.”) (collectively, the “Children”). Both Parents claim that

      there is insufficient evidence to support the terminations. Specifically, Mother

      argues that the Indiana Department of Child Services (“DCS”) failed to prove

      by clear and convincing evidence that: (1) 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; (2) a continuation of the

      parent-child relationship poses a threat to the Children’s well-being; and (3)

      termination of the parent-child relationships is in the Children’s best interests.

      Father argues only that there is insufficient evidence that termination of his

      parental rights is in the Children’s best interests. Concluding that there is

      sufficient evidence to support the termination of the parent-child relationships,

      we affirm the trial court’s judgment.


[2]   We affirm.


                                                      Issue
              The sole issue for our review is whether there is sufficient evidence
              to support the termination of the parent-child relationships.




      Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 2 of 14
                                                      Facts
[3]   Parents have two children: K.H., born August 20, 2012, and J.H., born

      September 17, 2014. Prior to the trial court’s termination of the Parents’

      relationships with K.H. and J.H., Parents had a history of involvement with

      DCS, including two prior Child In Need of Services (“CHINS”) adjudications.


[4]   The first CHINS proceeding, which involved then-one-year-old K.H., was filed

      on December 16, 2013. DCS alleged that Parents’ had drugs and drug

      paraphernalia in the home with K.H. present. On January 8, 2014, K.H. was

      adjudicated a CHINS. DCS subsequently provided Parents multiple services,

      including supervised visitation, random drug screens, and home-based case

      management. After Parents complied with the case plan, the court terminated

      its jurisdiction over the CHINS case on July 29, 2014.


[5]   Less than three months later, on October 16, 2014, DCS filed another CHINS

      petition after J.H.’s meconium tested positive for amphetamine and

      methamphetamine at birth. Both K.H. and J.H. were adjudicated CHINS and

      placed with a foster mother (“Foster Mother”) upon their removal from

      Parents. During this second CHINS case, DCS again provided Parents with

      multiple services, including substance abuse counseling, random drug screens,

      and visitation. Parents participated in services, and on September 28, 2015, the

      court terminated its jurisdiction over the CHINS case, and the Children

      returned to the Parents.




      Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 3 of 14
[6]   Shortly thereafter, on July 14, 2016, DCS received a report alleging drug use

      and domestic violence in Parents’ home. DCS Family Case Manager Tammy

      Clark (“FCM Clark”) visited Parents’ home multiple times to investigate, but

      she was unable to locate the family there. On July 18, 2016, FCM Clark was

      finally able to make contact with the family. DCS then located the Children in

      Ohio at the home of Mother’s aunt.


[7]   FCM Clark testified at the termination hearing that when she discovered K.H.,

      he had an “oozing burn” that had not been medically treated. (Tr. at 7). FCM

      Clark sought medical treatment for K.H. at Indiana University Medical Center,

      where DCS Family Case Manager Michelle Huber (“FCM Huber”), after

      interviewing K.H. and assessing the injury, determined that the injury was the

      result of abuse or neglect. Father later admitted, first to his substance abuse

      counselor and again during his testimony at the termination hearing, that

      K.H.’s arm had been burned with Father’s methamphetamine pipe


[8]   On July 18, 2016, Children were again placed with Foster Mother. On July 22,

      2016, Parents were arrested for maintaining a common nuisance, a Level 6

      felony. At the time of their arrests, both Parents tested positive for

      amphetamine and methamphetamine. Father also tested positive for THC.

      When FCM Clark visited Mother on July 23, 3016, she “was very clearly

      impaired,” rocking back and forth, picking at a sore on her lip, and unable to

      follow the conversation. (Tr. 9). On August 1, 2016, a probation violation was

      filed against Mother for her positive drug screens. Soon after, Parents both

      pleaded guilty to neglect of a dependent resulting in bodily injury, a Level 5

      Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 4 of 14
       felony. A no-contact order was issued prohibiting Parents from having contact

       with K.H. until two years following their release from incarceration.


[9]    On September 19, 2016, the court held a fact-finding hearing, during which

       both Parents admitted to drug use and domestic violence in the home. The

       court subsequently adjudicated the Children as CHINS, and the Children have

       remained with Foster Mother until present.


[10]   On September 20, 2016, Mother pleaded guilty to maintaining a common

       nuisance, a Level 6 felony, and was sentenced to 450 days with 122 days

       executed. For violating her probation, Mother was also ordered to serve 730

       days of her previously suspended sentence. Father also pleaded guilty to

       maintaining a common nuisance, a Level 6 felony, and was sentenced to 420

       days in prison with 120 days executed and 300 days suspended. Father also

       received two additional sentences: (1) 420 days in prison for possession of

       methamphetamine, a Level 6 felony; and (2) 180 days in the Decatur County

       Jail for possession of marijuana, a Class B misdemeanor, both which were

       suspended and to be served on probation.


[11]   Also in September 2016, Father pleaded guilty to dealing in marijuana, a Level

       6 felony, and was sentenced to 910 days, with 545 days suspended and 339 days

       served on Ripley County Jail Work Release.


[12]   While incarcerated, Father participated in the Fatherhood Engagement

       Program, had supervised visits with the Children, and completed a substance

       abuse assessment with Extra Special Parents substance abuse counselor Monica

       Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 5 of 14
       Berry (“Berry”). During the assessment, Father admitted a history of

       methamphetamine use and that K.H. was burned by Father’s

       methamphetamine pipe. Berry recommended Father complete an intensive

       outpatient program. On March 17, 2017, Father bonded out of jail, and six

       days later, on March 23, 2017, he tested positive for amphetamine,

       methamphetamine, and tramadol. As a result of this positive drug screen,

       Father’s bond was revoked, and he was reincarcerated at Ripley County Jail.


[13]   Mother has remained incarcerated through the pendency of the CHINS case

       and termination of parental rights hearing. Her estimated earliest release date is

       August 26, 2019, after which she will be on probation for two years. During

       her incarceration, she completed a Mother’s Against Methamphetamine

       program and additional classes. She has had video and phone contact with the

       Children. Mother also completed a substance abuse assessment with Berry,

       during which Mother admitted to a history of alcohol and drug use, as well as

       domestic violence in the home when she and Father were under the influence of

       drugs. Mother also admitted to drug and alcohol use during her pregnancy

       with J.H. Berry recommended Mother complete an inpatient substance abuse

       treatment program and a mental health evaluation.


[14]   On September 27, 2017, Mother pleaded guilty to a felony neglect of a

       dependent charge and was sentenced to five years in prison with two years

       suspended to probation. On October 2, 2017, Father also pleaded guilty to

       felony neglect of a dependent and was sentenced to five years in prison with

       three years actually served and two years suspended to probation. Parents were

       Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 6 of 14
       both ordered to have no contact with K.H. until at least two years post-

       incarceration.


[15]   On October 23, 2017, the trial court held a fact-finding hearing regarding

       termination of the Parents’ parental rights. The Court heard testimony from

       Parents, Foster Mother, multiple DCS employees, including FCM Clark and

       FCM Huber, as well as other service providers, including Berry and Court

       Appointed Special Advocate Becky Stein (“CASA Stein”). At the hearing,

       Huber and Stein both opined that termination of the Parents’ parental rights

       was in the Children’s best interests. Mother further testified that she wanted

       Children to be adopted by Foster Mother and believed that the adoption would

       be in the Children’s best interests. Father testified that he did not want his

       parental rights terminated, but he agreed that the Children “need some sort of

       permanency[.]”


[16]   On November 3, 2017, the trial court issued its order for involuntary

       termination of the parent-child relationships between Parents and Children.

       Parents now appeal.


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

       protected by the Fourteenth Amendment to the United States Constitution. In

       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans denied.

       However, a trial court must subordinate the interests of the parents to those of

       the child when evaluating the circumstances surrounding a termination. Id. at

       Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 7 of 14
       1188. Termination of the 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.


[18]   Before an involuntary termination of parental rights may occur, DCS is

       required to allege and prove, among other things:

               (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.

[19]   IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K. v. Ind. Dep’t. Servs., 989 N.E.2d 1225,

       1230 (Ind. 2013).


[20]   When reviewing the termination of parental rights, this Court will not reweigh

       the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

       Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 8 of 14
       628 (Ind. 2016). First, we determine whether the evidence supports the

       findings, and second, we determine whether the findings support the judgment.

       Id. We will set aside a trial court’s judgment terminating a parent-child

       relationship only if it is clearly erroneous. Id. Findings are clearly erroneous

       when the record contains no facts or inferences to be drawn therefrom that

       support them. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). A judgment

       is clearly erroneous if the findings do not support the trial court’s conclusions or

       the conclusions do not support the judgment. Id.


[21]   Mother challenges the trial court’s finding that Parents’ “continued pattern of

       drug use is extremely unlikely to stop.” (Mother’s Br. 20). She also challenges

       the trial court’s conclusions that DCS met its burden of proof for both

       subsections (B) and (C) of INDIANA CODE § 31-35-2-4(b)(2). Father challenges

       only the trial court’s conclusion that DCS met its burden of proof for subsection

       (C). We will address each subsection in turn.


           A. Reasonable Probability Conditions Will Not Be Remedied

[22]   First, Mother argues that DCS did not meet its burden under INDIANA CODE §

       31-35-2-4(b)(2)(B) because it failed to prove by clear and convincing evidence

       that: (1) 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; and (2) a continuation of the parent-child relationship poses a threat

       to the Children’s well-being. However, we note that subsection (B) is written in

       the disjunctive. Accordingly, DCS is required to establish by clear and

       convincing evidence only one of the three requirements of subsection (B). In re

       Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 9 of 14
       A.K., 924 N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only

       whether there is a reasonable probability that the conditions that resulted in the

       children’s removal or the reasons for their placement outside the home will not

       be remedied.


[23]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, trial courts engage in a two-

       step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). The first step is to

       identify the conditions that led to removal or placement outside the home and

       then determine whether there is a reasonable probability that those conditions

       will not be remedied. Id. The second step requires trial courts to judge a

       parent’s fitness at the time of the termination proceeding, taking into

       consideration evidence of changed conditions and balancing any recent

       improvements against habitual patterns of conduct to determine whether there

       is a substantial probability of future neglect or deprivation. Id. Habitual

       conduct may include parents’ prior criminal history, drug and alcohol abuse,

       history of neglect, failure to provide support, and a lack of adequate housing

       and employment. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157

       (Ind. Ct. App. 2013), trans. denied. The trial court may also consider services

       offered to the parent by DCS and the parent’s response to those services as

       evidence of whether conditions will be remedied. Id. Requiring trial courts to

       give due regard to changed conditions does not preclude them from finding that

       a parent’s past behavior is the best predictor of her future behavior. Id.




       Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 10 of 14
[24]   Here, our review of the evidence reveals that the Children were removed most

       recently from Mother and Father on July 18, 2016, due to suspected drug

       abuse, domestic violence, and child neglect. At that time, FCM Clark

       discovered K.H. with an untreated burn on his arm from Father’s pipe used for

       smoking methamphetamine. Parents subsequently pleaded guilty to neglect of

       a dependent resulting in bodily injury. In concluding that the conditions

       leading to Children’ removal—namely, Parents’ continued drug abuse and

       neglect of the Children—would probably not be remedied, the trial court

       considered Mother’s continuous pattern of substance abuse over several years.

       The trial court noted that Mother has had multiple criminal convictions,

       probation violations, and three CHINS cases. The court also noted that despite

       services offered to her by DCS, Mother was unable to remain sober longer than

       four weeks following DCS’s closing of the second CHINS proceeding, and she

       had a positive drug screen at the time of her arrest, indicating

       methamphetamine and amphetamine use.


[25]   The trial court also considered evidence bearing on Mother’s present fitness,

       including her continuous and current incarceration until August 2019, her

       violation of the no-contact order currently in place between her and K.H. until

       August 2021, and that her most recent stretch of sobriety overlaps entirely with

       her incarceration. See In re T.K., 989 N.E.2d 1225, 1234 (Ind. 2013) (finding it

       within a trial court’s discretion to ascribe less predictive value to a mother’s

       sobriety while in prison “where she would not have had access to illegal

       substances”). Mother argues in her brief that the trial court relied too heavily


       Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 11 of 14
       upon her pattern of drug addiction and neglect, rather than Mother’s recent

       sobriety while incarcerated. Specifically, she contends that “[by] opin[ing]

       Mother would continue the same pattern of drug addiction which first led to the

       children’s removal ... the court failed to consider evidence from the Record that

       Mother has changed.” (Mother’s Br. at 20). However, Mother’s argument

       simply invites this Court to reweigh the evidence, which it will not do. As

       discussed above, the record contains facts or inferences that support the trial

       court’s finding regarding Mother’s likelihood of continued drug use, and

       therefore Mother has not met her burden of showing that the court’s finding is

       clearly erroneous. The trial court’s finding is supported by the evidence, and in

       turn, that finding directly supports the trial court’s conclusion that there is a

       reasonable probability that the conditions leading to the Children’s removal will

       not be remedied. Accordingly, we find no error.


           B. Best Interests of the Children


[26]   Finally, Mother and Father both argue that there is insufficient evidence that

       the termination was in Children’s best interests, as is required by INDIANA

       CODE § 31-35-2-4(b)(2)(C). In determining whether termination of parental

       rights is in the best interests of a child, the trial court is required to look at the

       totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

       trans. denied. In so doing, the court must subordinate the interests of the parents

       to those of the child involved. Id. Termination of the parent-child relationship

       is proper where the child’s emotional and physical development is threatened.

       In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s

       Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 12 of 14
       historical inability to provide adequate housing, stability and supervision

       coupled with a current inability to provide the same will support a finding that

       continuation of the parent-child relationship is contrary to the child’s best

       interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

       Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

       denied, superseded by rule on other grounds). Further, the testimony of the service

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

       McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

       Ct. App. 2003).


[27]   Neither Mother nor Father challenges any of the trial courts’ findings pertaining

       to the best interests of the children. Rather, they both challenge whether the

       findings support the trial court’s conclusions that termination was in the

       Children’s best interests, arguing that guardianship should have been pursued

       instead. Here, our review of the trial court’s findings reveals that Parents both

       have a long history of criminal conduct and drug use, resulting in their current

       incarceration, that Parents have historically been unable to provide stability and

       supervision for the Children and were unable to provide the same at the time of

       the termination hearing, that Mother admitted at the termination hearing that

       adoption by Foster Mother would be in the Children’s best interests, and that

       Father agreed that the Children “need some sort of permanency[.]” (Tr. at

       110). In addition, CASA Stein and FCM Huber both opined in their hearing

       testimonies that DCS’s permanency plan, namely adoption by Foster Parents,

       was in the Children’s best interests. These testimonies, as well as the other


       Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 13 of 14
       evidence previously discussed, all support the trial court’s conclusion that

       termination was in the Children’s best interests.


[28]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[29]   Affirmed.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018   Page 14 of 14
