MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Apr 07 2016, 10:37 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Joshua D. Hershberger                                     Gregory F. Zoeller
Hershberger Law Office                                    Attorney General of Indiana
Madison, Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         April 7, 2016
Child Relationship of:                                    Court of Appeals Case No.
                                                          72A01-1510-JT-1610
P.S. (Minor Child)
and                                                       Appeal from the Scott Circuit
                                                          Court
C.S. (Mother),
                                                          The Honorable Roger L. Duvall,
Appellant-Respondent,                                     Judge

        v.                                                Trial Court Cause No.
                                                          72C01-1501-JT-4

The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016           Page 1 of 8
      Bailey, Judge.



                                              Case Summary
[1]   C.S. (“Mother”) appeals the trial court’s order on the Department of Child

      Services’ (“DCS”) petition, which order terminated her parental rights as to

      P.S. (“Child”).1 We affirm.



                                                        Issues
[2]   Mother raises several issues for our review, which we restate as a single,

      consolidated issue: whether the trial court’s order was supported by clear and

      convincing evidence.



                               Facts and Procedural History
[3]   Child was born to Mother and Father on March 18, 2014. At birth, Child was

      drug exposed. As a result, DCS detained Child on March 19, 2014. Mother

      had been involved with DCS services as the result of a Child in Need of

      Services (“CHINS”) action with respect to Mother’s other child, R.P., who was

      at the time of Child’s birth still the subject of a CHINS proceeding.


[4]   On May 20, 2014, Child was adjudicated a CHINS.




      1
          D.G. (“Father”) was a party below, and his parental rights were also terminated. He does not appeal.


      Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016               Page 2 of 8
[5]    During the pendency of the CHINS proceeding, DCS offered Mother substance

       abuse treatment, thrice-weekly supervised visitation with Child, and other

       therapeutic services. On multiple occasions, treatment providers recommended

       to Mother that she participate in inpatient substance abuse treatment for

       opiates. Though Mother expressed recognition that she had a substance abuse

       problem, she declined or avoided offers of inpatient treatment.


[6]    Mother participated in supervised visits with Child during April and May 2014.

       While Mother attended some substance abuse counseling, she was screened for

       drug use on eight occasions; on six of these, Mother tested positive for use of a

       number of different drugs, including oxycodone, oxymorphone, hydrocodone,

       Xanax, marijuana, and heroin. After May 2014, however, Mother had no

       contact of any type with any service providers, and ceased participating in

       visitation with Child. Mother’s attendance at hearings was also sporadic.


[7]    In October 2014, Mother was arrested and charged with Fraud and Theft. Also

       in October 2014, Mother’s parental rights as to R.P. were terminated.


[8]    On January 6, 2015, DCS filed a petition to terminate Mother’s parental rights.


[9]    In April 2015, during the pendency of proceedings on the petition, Mother

       began inpatient substance abuse treatment at The Healing Place, an inpatient

       treatment center in Kentucky.


[10]   A fact-finding hearing on the petition was conducted on May 28, 2015. Mother

       was represented by counsel but failed personally to appear at the hearing. After


       Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016   Page 3 of 8
       hearing testimony from service providers and Father, the trial court continued

       the hearing to arrange for Mother’s transportation from The Healing Place to

       provide testimony. The fact-finding hearing was continued to and concluded

       on June 25, 2015.


[11]   On September 3, 2015, the court entered its order terminating Mother’s parental

       rights. This appeal ensued.



                                  Discussion and Decision
[12]   Mother challenges the termination of her parental rights as to Child on a

       number of bases. Our standard of review is highly deferential in such cases. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not set aside

       the trial court’s judgment terminating a parent-child relationship unless it is

       clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997).


[13]   Parental rights are of a constitutional dimension, but the law provides for the

       termination of those rights when the parents are unable or unwilling to meet

       their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839

       N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not

       to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,

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


[14]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege

       and prove by clear and convincing evidence in order to terminate a parent-child

       relationship:

       Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016   Page 4 of 8
               (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 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.


[15]   If the court finds that the allegations in a petition described above are true, the

       court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a). A trial

       court must judge a parent’s fitness to care for his or her child at the time of the

       Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016   Page 5 of 8
       termination hearing, taking into consideration evidence of changed conditions.

       In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The trial

       court must also “evaluate the parent’s habitual patterns of conduct to determine

       the probability of future neglect or deprivation of the child.” Id.


[16]   Here, Mother challenges the termination decree under Subsections 31-35-2-

       4(b)(2)(B) and (C).


[17]   Subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, so that the court need

       only have found one of the requirements of the subsection to have been

       established by clear and convincing evidence. In re L.S., 717 N.E.2d at 209.

       Here, the trial court concluded that both Subsections 31-35-2-4(b)(2)(B)(i) and

       (ii) were met.


[18]   The evidence that favors the trial court’s decision discloses that Mother had a

       long-standing substance abuse problem and that, as a result, Child was born

       drug-exposed. Child remained in the hospital for an extended period of time

       after birth, and then was placed in foster care. Mother ceased taking advantage

       of supervised visits with child in May 2014, and as of the termination hearing

       had not seen Child for more than twelve months. Mother’s substance abuse

       problems were persistent and ongoing. While Mother voluntarily entered into

       inpatient drug treatment, a fact noted by the trial court, the course of treatment

       was likely to last at least six and possibly as many as thirteen months, and Child

       could not reside with Mother until the end of that course of treatment. Further,

       criminal charges were pending against Mother at the time of the fact-finding


       Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016   Page 6 of 8
       hearing. In the absence of stable housing and in the face of ongoing criminal

       proceedings, with only a small portion of substance abuse treatment completed,

       and with Child having been removed from Mother’s care for all of her life, there

       was clear and convincing evidence that continuing the parent-child relationship

       posed a threat to Child’s well-being. And while Mother’s efforts at

       rehabilitation are admirable, we cannot say the trial court’s decision was clearly

       erroneous.


[19]   With respect to Child’s best interests, we note the following evidence favoring

       the trial court’s decision. Child had been removed from Mother’s care at birth,

       and Mother had not seen Child for more than twelve months at the time of the

       fact-finding hearing. Child was in Kentucky with a relative, was thriving, and

       was in daily contact with R.P., who had also been removed from Mother’s care.

       Child had bonded to her caregivers and to her older sister, and Child’s foster

       family expressed interest in adopting her. Mother’s housing, substance use, and

       criminal charges were all unresolved. Accordingly, we conclude that there was

       clear and convincing evidence to support the trial court’s finding that

       termination of Mother’s parental rights was in Child’s best interests.



                                                Conclusion
[20]   There was clear and convincing evidence to support the trial court’s finding that

       a continuation of the parent-child relationship posed a threat to Child’s

       wellbeing, and that termination of the parent-child relationship was in Child’s

       best interests.

       Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016   Page 7 of 8
[21]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016   Page 8 of 8
