MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                         Jun 24 2016, 6:35 am
this Memorandum Decision shall not be
                                                                    CLERK
regarded as precedent or cited before any                       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
Patricia Caress McMath                                    Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General
Indianapolis, Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Matter of Da.H. and                             June 24, 2016
Dy.H.:                                                    Court of Appeals Case No.
                                                          49A02-1510-JT-1744
                                                          Appeal from the Marion Superior
K.H. (Mother),                                            Court
Appellant-Respondent,                                     The Honorable Marilyn Moores,
                                                          Judge
        v.
                                                          The Honorable Larry Bradley,
                                                          Magistrate
The Indiana Department of
Child Services,                                           Trial Court Cause No.
                                                          49D09-1502-JT-50
Appellee-Petitioner.                                      49D09-1502-JT-51




Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016    Page 1 of 12
      Vaidik, Chief Judge.



                                           Case Summary
[1]   K.H. (Mother) appeals the termination of her parental rights to her twin four-

      year-old sons, Da.H. and Dy.H., arguing that the evidence is insufficient to

      support the juvenile court’s judgment. The children were adjudicated children

      in need of services (CHINS) because Mother did not have stable housing, she

      admitted using marijuana and tested positive for methamphetamine, and her

      mental-health status was uncertain. In the twenty-two months after the

      children were removed, Mother moved between the homes of family and

      friends seven times, did not consistently submit to random drug screening, and

      was not willing to pursue alternate treatments for her mental-health issues when

      therapy alone was insufficient. Concluding that the Indiana Department of

      Child Services (DCS) proved the statutory grounds for termination of the

      parent-child relationship (TPR) by clear and convincing evidence and that the

      trial court’s judgment is not clearly erroneous, we affirm.



                            Facts and Procedural History
[2]   Da.H. and Dy.H., born September 12, 2011, are the twin sons of Mother and

      D.H. (Father). DCS filed a CHINS petition on January 7, 2014, alleging that

      Mother did not have stable housing for the children, she admitted using

      marijuana and subsequently tested positive for methamphetamine, and DCS

      was unsure of Mother’s mental-health status because “she ha[d] previously been

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016   Page 2 of 12
      detained for intentionally cutting herself.” Ex. 7, p. 11. Two weeks later,

      Mother admitted that the children were CHINS and that she “has substance

      abuse issues and mental health needs which need to be consistently addressed.

      [Mother] has not properly addressed these issues and therefore the court should

      intervene to ensure the children’s safety and well-being.” Ex. 10, p. 28. The

      juvenile court adjudicated the children CHINS, finding that they were in need

      of services for the reasons alleged in the DCS petition. Id.


[3]   The juvenile court entered a parental-participation order that required Mother

      to participate in a home-based counseling program, complete a substance-abuse

      assessment and successfully complete all treatment recommendations, submit to

      random drug and alcohol screens, and complete a mental-health evaluation and

      follow all recommendations resulting from it. Ex. 11, p. 32. Accordingly, DCS

      generated referrals for home-based case management, mental-health services,

      and substance-abuse treatment.

[4]   The home-based case-management referral was intended to help Mother find a

      job, connect to community resources, and, ultimately, find stable housing. But

      Mother was unable to obtain stable housing. She moved between the homes of

      friends and family at least seven times during the CHINS proceeding. She lived

      with her mother in Martinsville, with Father and his aunt in Speedway, with

      Father at a motel, with her mother at a new home in Indianapolis, with her

      cousin, back to her mother’s home, and, finally, with her father. Mother’s lack

      of stable income was one reason that she had difficulty obtaining stable

      housing. Over the course of the CHINS case, Mother worked for only a few

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016   Page 3 of 12
      weeks as a waitress in November 2014, and then she began a part-time cleaning

      job at a hotel a “couple of months” before the TPR hearing. Appellant’s Br. p.

      7. The home-based case-management referral was ultimately closed

      unsuccessfully because of lack of progress.

[5]   DCS also issued referrals for a dual assessment of Mother’s mental-health status

      and substance abuse and for home-based counseling. Mother worked with a

      therapist consistently over the duration of the CHINS case. According to the

      therapist, Mother was making some progress, “but we still have significant

      challenges at this point that we’re dealing with.” Tr. p. 36. Specifically,

      Mother had not made enough progress in addressing her anxiety and

      depression to be discharged from home-based counseling. In addition to the

      therapy, Mother was prescribed Zoloft for her anxiety and depression. The

      therapist saw signs of improvement while Mother was taking it, but Mother quit

      taking it after a month because she did not think it was helping. The therapist

      encouraged Mother to either return to the prescribing doctor or see a different

      doctor to explore other treatment options, but Mother declined.

[6]   Beyond the dual assessment for mental-health status and substance abuse,

      which Mother completed, additional treatment was not recommended or

      referred for Mother’s marijuana use. However, as part of the parental

      participation order, Mother was required to submit to random drug screening.

      She was required to call the service provider every day to find out if she needed

      to report that day and then travel to the screening facility on the assigned days.

      Because Mother did not have a car, DCS supplied bus passes, and her home-

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016   Page 4 of 12
      based service providers offered to take her to the screening facility if she called

      them in the morning. Yet, apart from the five months between March and

      August 2014, Mother did not consistently comply with the random screening

      procedures.

[7]   On January 30, 2015, the permanency plan for the children was changed to

      adoption because of Mother’s lack of progress in her services, and DCS filed a

      TPR petition four days later. The Family Case Managers (FCM) and the court

      appointed special advocate (CASA) testified at the TPR hearing in September

      2015. First, FCM Natalie Hicks, who was the FCM from January 2014

      through January 2015, testified that Mother was not able to successfully

      complete her services and was not ready to parent the children. It was not in

      the children’s best interests to give Mother more time, nor did FCM Hicks think

      more time would help Mother become ready to parent. Next, FCM Amber

      Monday, who had the case from March through September 2015, testified that

      she would not recommend placement with Mother because of the lack of safe,

      stable housing and Mother’s inability to provide for the children financially.

      The CASA also testified that it was in the children’s best interests to be adopted

      and that Mother should not be given additional time to complete services.

[8]   The juvenile court found that Mother’s housing was unstable and her income

      was inconsistent. It found that she had not adequately addressed her mental-

      health needs and was still “struggling with anxiety and hopelessness which was

      a barrier to going forward in services,” yet she was not taking her medication or

      pursuing alternative treatment. Appellant’s App. p. 29. And the juvenile court

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016   Page 5 of 12
       found that Mother was not completing her drug screens consistently—the last

       one was in March or early April 2015, and was positive for marijuana. The

       juvenile court concluded that there is a reasonable probability that the

       conditions that resulted in the children’s removal and continued placement

       outside the home will not be remedied and that termination is in the children’s

       best interest. Accordingly, the court terminated the parent-child relationship

       between Mother and Da.H. and Dy.H.

[9]    Mother now appeals.



                                  Discussion and Decision
[10]   Mother argues that DCS did not prove the statutory requirements for

       termination by clear and convincing evidence. When reviewing the termination

       of parental rights, we do not reweigh the evidence or judge witness credibility.

       In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). Rather, we consider only the

       evidence and reasonable inferences that are most favorable to the judgment of

       the juvenile court. Id. We will not set aside the juvenile court’s judgment

       unless it is clearly erroneous. Id. To determine whether a judgment

       terminating parental rights is clearly erroneous, we review whether the evidence

       clearly and convincingly supports the juvenile court’s findings and whether the

       findings clearly and convincingly support the judgment. In re V.A., No. 02S04-

       1602-JT-93, 2016 WL 661748, at *1 (Ind. Feb. 18, 2016).


[11]   A petition to terminate parental rights must allege, among other things:


       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016   Page 6 of 12
                (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[.]


[12]   Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. In re I.A., 934 N.E.2d at 1133.


[13]   Mother raises two arguments. First, she argues that there is insufficient

       evidence to support the juvenile court’s conclusions that the conditions that

       resulted in the children’s removal will not be remedied.1 Second, Mother

       argues that there is insufficient evidence to support the conclusion that

       termination of the parent-child relationship is in the best interests of the

       children.




       1
         Mother also argues that there was insufficient evidence to support the juvenile court’s conclusion that
       continuation of the parent-child relationship poses a threat to the children’s well-being. Indiana Code section
       31-35-2-4(b)(2) requires proof of only one of the three conditions listed in subsection (B), and we conclude
       that there is sufficient evidence to support the juvenile court’s determination that the conditions resulting in
       the children’s removal will not be remedied. Therefore, we do not address this argument.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016               Page 7 of 12
        I. Reasonable Probability That the Conditions Resulting
                  in Removal Will Not Be Remedied
[14]   Mother contends that the evidence is insufficient to support the juvenile court’s

       conclusions that the conditions resulting in the children’s placement outside the

       home will not be remedied. We engage in a two-step analysis to determine

       whether the evidence is sufficient. In re V.A., No. 02S04-1602-JT-93, 2016 WL

       661748, at *4 (Ind. Feb. 18, 2016). First, we identify the specific conditions that

       led to placement and retention outside the home and, second, we determine

       whether there is a reasonable probability that those conditions will not be

       remedied. Id. A parent’s fitness at the time of the termination proceeding is the

       focus of the second inquiry, and juvenile courts have discretion to weigh a

       parent’s prior history more heavily than efforts made only shortly before

       termination. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014).


[15]   Da.H. and Dy.H. were removed from Mother for three reasons: Mother’s lack

       of stable housing, substance abuse, and mental-health condition. The parental

       participation order required Mother to participate in a home-based counseling

       program, complete a substance-abuse assessment and successfully complete all

       treatment recommendations, submit to random drug and alcohol screens, and

       complete a mental-health evaluation and follow all recommendations resulting

       from it. Therefore, to terminate the parent-child relationship between Mother

       and the children, the court had to find that there was a reasonable probability




       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016   Page 8 of 12
       that Mother’s housing, substance abuse, or mental-health issues would not be

       remedied.2

[16]   The juvenile court found that “[Mother’s] housing has been unstable

       throughout the CHINS case, residing with family, friends or living in motels.”

       Appellant’s App. p. 29. Mother argues that she had stable housing at the time

       of the TPR hearing—she was renting a room from her father. However, the

       agreement Mother and her father signed is dated less than a week before the

       start of the TPR hearing. Mother received months of home-based case

       management targeted at assisting her with finding a job, connecting to

       community resources, and obtaining stable housing, but she was unable to

       make progress and her referral was closed unsuccessfully. The case manager

       felt there would be ongoing issues and no probability of success in the service.

       The court could reasonably infer, based on Mother’s frequent movement

       between the homes of family members and friends over the course of the

       CHINS case and her inability to make progress toward stable housing while

       working with a home-based case manager, that Mother’s living arrangements

       were not likely to become stable, despite the last-minute agreement that she

       could live with her father.




       2
         After concluding that “[t]here is a reasonable probability that the conditions that resulted in the children’s
       removal and continued placement outside the home will not be remedied by their mother[,]” the trial court
       continued on, saying that Mother “has not been able to become self-sufficient[.]” Appellant’s App. p. 29.
       We view self-sufficiency as another way to explain Mother’s lack of stable housing, substance abuse, and
       mental-health issues. In any event we review the trial court’s findings and the evidence addressing only
       housing, substance abuse, and mental health to determine whether the trial court’s conclusion is supported.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016                 Page 9 of 12
[17]   As to Mother’s substance abuse, no treatment was recommended based on the

       dual-diagnosis assessment. Therefore, all Mother needed to do was refrain

       from using illegal drugs and submit to the random drug screening required by

       the parental-participation order. The order clearly states that a failure to screen

       will be interpreted as a positive screen. Ex. 11, p. 32. The juvenile court found

       that Mother “was very inconsistent in random screens, taking her last one,

       positive for marijuana, in late March or early April 2015.” Appellant’s App. p.

       29. In addition, Mother’s therapist testified that Mother admitted to using

       marijuana around the time of her last screen, and the therapist thought Mother

       used it to cope with anxiety. Mother’s failure to test and the fact that her final

       test was positive indicate that Mother did not address her substance abuse

       according to the terms of the parental-participation order.

[18]   Finally, the juvenile court found that Mother participated in therapy for her

       mental health for over a year and the therapist “has seen some improvement in

       the area of anger management, but sees issues of mental health and instability

       as still being a struggle for [Mother] to the point that she would be concerned if

       the children were placed with [her].” Appellant’s App. p. 29. In particular, the

       court found that Mother “was still struggling with anxiety and hopelessness

       which was a barrier to going forward[.]” Id. This is consistent with the

       therapist’s testimony that Mother’s anxiety was impeding her progress and that

       the therapist’s biggest concern with the children being returned to Mother was

       Mother’s lack of stability—“being able to even just experience what that is like I

       think would be a big feat to tackle.” Tr. p. 33-34. In addition to therapy,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016   Page 10 of 12
       Mother was prescribed Zoloft for her anxiety and depression, but she quit

       taking it after a month because she did not think it was helping, and she

       declined the advice of her therapist that she return to the prescriber or see a

       different doctor to consider another treatment option. The court’s findings are

       supported by the therapist’s testimony and the findings support the conclusion

       that there is a reasonable probability that Mother’s mental-health condition will

       not be remedied—Mother was willing to participate in therapy, but therapy

       alone was not sufficient treatment for her anxiety and depression, and Mother

       was unwilling to pursue treatment beyond that.


[19]   The evidence supports the juvenile court’s findings that the conditions that led

       to the removal of the children were not remedied over the twenty-two months

       of the CHINS case, and the findings support the conclusion that there is a

       reasonable probability the conditions will not be remedied.


                              II. Best Interests of the Children
[20]   Mother also contends that DCS did not present clear and convincing evidence

       that termination is in the best interests of the children. In determining what is

       in a child’s best interests, the juvenile court must look to the totality of the

       evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans.

       denied. We have previously held that recommendations by both the FCM and

       CASA to terminate parental rights, in addition to evidence that the conditions

       resulting in removal will not be remedied, is sufficient to show by clear and




       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016   Page 11 of 12
       convincing evidence that termination is in the child’s best interests. Id. at 1158-

       59.

[21]   Here, the juvenile court’s conclusion that termination of the parent-child

       relationship is in Da.H.’s and Dy.H.’s best interests is supported by the

       testimony of the CASA, FCM Hicks and FCM Monday, as well as Mother’s

       failure to achieve stable housing and adequately address her substance-abuse

       and mental-health issues over the twenty-two months of the CHINS case.

       Mother has not persuaded us that the juvenile court’s judgment was clearly

       erroneous.

[22]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016   Page 12 of 12
