MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Aug 16 2019, 9:02 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
Daniel G. Foote                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the                                 August 16, 2019
Parent-Child Relationship of:                             Court of Appeals Case No.
                                                          19A-JT-433
J.N. (Minor Child),
                                                          Appeal from the Marion Superior
and                                                       Court
A.N. (Mother),                                            The Honorable Mark A. Jones,
Appellant-Respondent,                                     Judge
                                                          The Honorable Larry Bradley,
        v.                                                Magistrate
                                                          Trial Court Cause No.
The Indiana Department of                                 49D15-1808-JT-926
Child Services,
Appellee-Petitioner



Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019                  Page 1 of 11
[1]   A.N. (Mother) appeals the juvenile court’s order terminating her parent-child

      relationship with J.N. (Child), arguing that the evidence is insufficient to

      support the order. Finding the evidence sufficient, we affirm.


                                                         Facts
[2]   Child was born to Mother on December 5, 2014,1 with marijuana in his system.

      As a result, the Department of Child Services (DCS) became involved with the

      family and Mother participated successfully in a program of informal

      adjustment.


[3]   On August 20, 2017, DCS received a report that Mother had been arrested,

      leaving no caregiver for Child. Mother explained to the Family Case Manager

      (FCM) that police had searched her car at a gas station and found a syringe in

      her purse and heroin in a cigarette pack, both of which were within the reach of

      two-year-old Child. Additionally, Child had been unrestrained in the vehicle

      because Mother did not have a car seat for him. DCS removed Child, placed

      him in foster care, and filed a petition alleging that he was a Child in Need of

      Services (CHINS). On November 29, 2017, the juvenile court found Child to

      be a CHINS based on Mother’s admission that she needed “assistance in

      maintaining a home free from substance abuse.” Tr. Ex. 61.




      1
          Child’s father is not a part of this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019   Page 2 of 11
[4]   During the CHINS case, Mother eventually pleaded guilty to possession of

      heroin for the incident that resulted in the CHINS case. Mother failed to

      appear at multiple hearings in her criminal case and had approximately seven

      bench warrants issued at various times as a result. She was incarcerated on and

      off during the CHINS case. In addition to the possession conviction, Mother

      pleaded guilty to theft after shoplifting from a Walmart during the CHINS case.


[5]   The juvenile court ordered Mother to participate with a substance abuse

      assessment. She failed to do so even though DCS referred her to the assessment

      five times. She began an intensive outpatient treatment program (IOP) in the

      fall of 2018 but was unsuccessfully discharged for disrupting the groups,

      arriving late, and smelling of marijuana. During the CHINS case, Mother

      submitted to only 15 out of over 100 requested drug screens, and all 15 were

      positive for, among other things, methamphetamine, marijuana, heroin, and

      fentanyl. Five days before the termination trial, Mother finally completed a

      substance abuse assessment to satisfy a condition of probation, but she refused

      to participate in the recommended treatment.


[6]   During the CHINS case, Mother wanted, but did not find, employment and

      stable housing independent of her own mother’s (Grandmother) home. She

      was employed for only a couple of months during the CHINS case.


[7]   Mother’s therapist testified that Mother had made only minimal progress on her

      issues because she was unwilling to take responsibility for her actions. The

      therapist believed that Mother was at very high risk of drug abuse relapse.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019   Page 3 of 11
       When the therapist visited Mother at Grandmother’s home, it was cluttered and

       there were many animals in the home and feces on the floor.


[8]    Mother’s home-based case manager testified that she had serious concerns

       about Mother’s relationship with Grandmother—they continuously argued,

       even during therapy sessions. Grandmother is the victim of domestic violence

       from her boyfriend or husband, who still lived with her, and has not completed

       any domestic violence counseling. When DCS assessed Grandmother as a

       possible relative care placement for Child on three occasions during the CHINS

       case, all were unsuccessful. First, the home was unsuitable because the abuser

       still lived in the home; second, the home was unsuitable because Grandmother

       refused to cooperate with the assessment process; finally, the home was

       unsuitable because Grandmother tested positive for methamphetamine.

       Grandmother refused to submit to a drug screen on the day of the termination

       hearing.


[9]    Mother’s visitation supervisor testified that the referral for that service closed

       three times for incarcerations or failures to show for visitation. The supervisor

       believed that Mother was using drugs because she often fell asleep during visits.

       Mother spent too much time talking on the phone and cancelled often in the

       beginning. She allowed Child to watch videos and movies on her phone

       instead of interacting with him.


[10]   Six days before the termination hearing, Mother successfully completed a

       twenty-one-day inpatient substance abuse program. That was Phase I of the


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019   Page 4 of 11
       program. Phase II consisted of another fifty-four days, but Mother refused to

       participate and instead planned to report to work release on January 28, 2019. 2

       She also refused to comply with the program’s recommendation that she

       remain in inpatient treatment for another ten days until she reported to work

       release.


[11]   On August 15, 2018, DCS filed a petition to terminate the parent-child

       relationship, and the factfinding hearing took place on January 24, 2019.

       Child’s Court Appointed Special Advocate (CASA) testified that in her

       opinion, it was in Child’s best interests that the parent-child relationship be

       terminated. The case had been open for seventeen months, and Mother had

       only begun to try to address her addictions in the previous twenty-one days.

       She still did not have a suitable home or the financial means to care for Child.

       The FCM agreed, testifying that Mother was unable to provide Child with safe

       and stable housing, that her criminal activities and drug use posed a threat to

       Child’s safety, and that Mother had not demonstrated an ability or intention to

       remain sober. Child is bonded to and thriving in the care of his foster parents,

       who plan to adopt him. On January 29, 2019, the juvenile court entered an

       order granting the termination petition. Mother now appeals.




       2
        Employees with the substance abuse treatment facility offered to explain to the trial court why it was
       important that Mother continue with her substance abuse treatment in the hope that her work release
       program could be delayed. Mother refused that offer.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019                    Page 5 of 11
                                    Discussion and Decision
                                       I. Standard of Review
[12]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


[13]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:


               (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.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019   Page 6 of 11
                 (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 local office or
                         probation department for at least fifteen (15) months
                         of the most recent twenty-two (22) months,
                         beginning with the date the child is removed from
                         the home as a result of the child being alleged to be
                         a child in need of services or a delinquent child;


        (B)      that one (1) of the following is true:


                 (i)     There is a reasonable probability that the conditions
                         that resulted in the child’s removal or the reasons
                         for placement outside the home of the parents will
                         not be remedied.


                 (ii)    There is a reasonable probability that the
                         continuation of the parent-child relationship poses a
                         threat to the well-being of the child.


                 (iii)   The child has, on two (2) separate occasions, been
                         adjudicated a child in need of services;


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


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


Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019   Page 7 of 11
       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                                              II. Sufficiency

                                    A. Reasons for Removal
[14]   Mother first argues that the evidence does not establish a reasonable probability

       that the conditions resulting in Child’s initial and continued removal outside

       her care and custody will not be remedied. Child was initially removed because

       of concerns about Mother’s substance abuse and criminal charges. He

       continued to be removed based on those concerns as well as concerns about her

       lack of suitable housing.


[15]   During the CHINS case, Mother had many, many opportunities to participate

       with substance abuse treatment. She failed to do so until the days leading up to

       the termination hearing—and then, she only did so because it was a required

       probation condition. See K.T.K., 989 N.E.2d at 1234 (holding that court is

       within its discretion to disregard evidence of remedial efforts made only shortly

       before the termination hearing). She was unsuccessfully discharged from IOP

       and, while she successfully completed the first phase of an inpatient treatment

       program, she refused to comply with the recommendations following that

       program. She completed only 15 of over 100 requested drug screens during the

       CHINS case; all 15 were positive for multiple illicit substances. She used

       heroin while in jail and either heroin and/or methamphetamine while on home

       detention at Grandmother’s house. Her last use of methamphetamine was on

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019   Page 8 of 11
       December 28, 2018, the same day she entered the inpatient program, four

       months after DCS filed the termination petition and just one month before the

       termination hearing. Mother’s therapist believed that, even following the

       inpatient treatment program, Mother remained at a very high risk of relapse.

       She has yet to demonstrate that she is able to remain sober in an uncontrolled—

       or, indeed, even in a controlled—environment.


[16]   Mother was working to complete her sentence in her criminal case. At the time

       of the termination hearing, it was reported that if she successfully completed the

       111 days of work release, she would have no remaining obligations in that case.

       But she also committed at least one new crime—theft—while the CHINS case

       was ongoing—and frequently failed to appear at hearings in her criminal case.


[17]   As for housing, at the time of the termination hearing she continued to live with

       Grandmother. Everyone—including Mother—agreed that Grandmother’s

       home is not a suitable place for Child to live. But Mother made no progress

       over the course of the CHINS case towards finding her own independent

       suitable housing. Similarly, she was unable to find and maintain employment

       during the CHINS case.


[18]   Mother focuses heavily on the month leading up to the termination hearing,

       when she completed Phase I of the inpatient treatment program. While we

       applaud her participation, the fact that she then refused to comply with the

       recommendations stemming from the program greatly undercuts the value of

       that participation. Moreover, over the life of the CHINS case, she repeatedly


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019   Page 9 of 11
       failed to address her very serious substance abuse issues, despite multiple

       chances to do so. Under these circumstances, we find that the juvenile court

       did not err by concluding that there was a reasonable probability that the

       conditions leading to Child’s initial and continued removal would not be

       remedied.3


                                               B. Best Interests
[19]   Mother next argues that the juvenile court erred in determining that termination

       of the parent-child relationship is in Child’s best interests.


[20]   By the time of the termination hearing, Mother had failed to secure suitable

       housing or maintain employment. Despite seventeen months to address her

       substance abuse issues, she failed to take any real steps in that direction until

       the month leading up to the termination hearing—and even then, she refused to

       comply with further treatment recommendations. She used multiple illicit

       substances regularly throughout the CHINS proceeding. Child’s CASA and the

       FCM testified that in their view, termination was in Child’s best interests.

       Child’s therapist testified that it would be traumatic to remove Child from his

       current placement. None of the service providers involved in the CHINS case

       even recommended that Mother be given unsupervised parenting time,




       3
         As the elements are phrased in the disjunctive, we need not also address whether the evidence supports the
       juvenile court’s finding that the continuation of the parent-child relationship posed a threat to Child’s well-
       being. We note, however, that the same evidence discussed above likewise supports a conclusion that the
       juvenile court did not err in finding this element established by clear and convincing evidence.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019                    Page 10 of 11
       including the visitation supervisor, who had multiple concerns based on her

       observations of Mother’s interactions with Child.


[21]   Given this record, we find that the juvenile court did not err by concluding that

       termination of the parent-child relationship is in Child’s best interests.


                                        C. Satisfactory Plan
[22]   Finally, Mother argues that DCS does not have a satisfactory plan for Child’s

       care and treatment. Child has been in his current foster home since March

       2018. He is bonded to his foster family and is well adjusted and thriving. His

       foster family has met his needs, including ensuring that he attended counseling

       and play therapy. They plan to adopt him. We find that the juvenile court did

       not err by concluding that this plan is satisfactory.


[23]   The judgment of the juvenile court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-433 | August 16, 2019   Page 11 of 11
