MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                              Apr 11 2016, 8:46 am

this Memorandum Decision shall not be                                    CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Andrew E. Grossnickle                                     Gregory F. Zoeller
Green, Grossnickle & Flecker, LLP                         Attorney General of Indiana
Syracuse, Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         April 11, 2016
Child Relationship of:                                    Court of Appeals Case No.
                                                          92A03-1510-JT-1684
H.W. (Minor Child)
                                                          Appeal from the Whitley Circuit
and                                                       Court
S.L. (Mother),                                            The Honorable James R. Heuer,
Appellant-Respondent,                                     Judge
                                                          Trial Court Cause No.
        v.                                                92C01-1503-JT-14

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016        Page 1 of 13
      Bradford, Judge.



                                           Case Summary
[1]   Appellant-Respondent S.L. (“Mother”) is the mother of minor child H.W. (“the

      Child”). Appellee-Petitioner the Indiana Department of Child Services

      (“DCS”) received allegations that Mother was using drugs in the presence of

      the Child and the Child was determined to be a child in need of services

      (“CHINS”). Mother failed to comply with the trial court’s subsequent

      dispositional orders and DCS filed a petition to terminate the parent-child

      relationship. After conducting a hearing on the petition, the trial court

      terminated Mother’s parental rights over the Child. Mother appeals, arguing

      that there is insufficient evidence supporting the trial court’s termination order.

      Concluding otherwise, we affirm.



                            Facts and Procedural History
[2]   On March 30, 2015, DCS filed a petition for involuntary termination of the

      parent-child relationship. On July 7, 2015, the trial court held a fact-finding

      hearing in relation to DCS’s petition. On September 16, 2015, the trial court

      issued an order terminating the parent-child relationship. The trial court’s order

      contained the following undisputed findings of fact:

              3. On June 3, 2009, the child, [H.W.] (hereinafter “Child”), was
              born.
              …

      Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 2 of 13
        6. On or about July 8, 2013, Child and the parents [M.W.]
        (hereinafter “Father”) and [S.L.] (hereinafter “Mother”) became
        involved with DCS when DCS investigated a report that Child
        was a Child In Need of Services. More specifically, the facts are
        that the mother was using drugs in the presence of the children.
        An Informal Adjustment was entered into. On or about October
        29, 2013, DCS filed its Petition alleging that Child was a Child in
        Need of Services (CHINS).
        7. On November 12, 2013, the Court entered its Order on Child
        in Need of Services after mother admitted the allegations of the
        petition alleged under Indiana Code 31-34-1-1, adjudicating
        Child to be a CHINS.
        …
        9. On December 9, 2013, the Court entered its Dispositional
        Order, in which Child was formally removed from the parents,
        DCS was granted wardship of Child. The Dispositional Order
        contained the following provisions regarding mother: Mother
        shall begin supervised visitation with the child after passing three
        drug screens and beginning services with the Bowen Center;
        Mother shall complete a substance abuse assessment, parenting
        assessment, and a psychological assessment and follow all
        recommendations; Obtain secure employment; Obtain stable
        housing; Submit to random drug screens within one hour of
        request. Failure to submit to the drug screen will result in a failed
        test; Notify the Department of Child Services of any change in
        address, phone number, or employment within 48 hours of the
        change; Inform the Department of Child Services of any contact
        with law enforcement within 48 hours after contact. (State ‘5
        Exhibit B). The permanency plan at that time was for
        reunification.
        10. After formal removal of Child per the Dispositional Decree of
        December 9, 2013, Child was never returned to parents’ care and
        custody.
        11. Throughout most of the case, Mother put her desires before
        Child’s needs; The child was removed October 28, 2013 after

Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 3 of 13
        Mother admitted to not complying with the Informal
        Adjustment, testing positive for marijuana, not participating in
        services, and not staying in contact with DCS.
        12. Mother was unable to sustain consistent and suitable housing
        for any length of time throughout the pendency of the underlying
        CHINS case, the longest approximately three-four months at the
        Charis House (a homeless shelter), the majority of the places
        Mother lived were not her own, thereby demonstrating a lack of
        stability.
        13. Mother admitted being removed from Charis House as a
        result of her failure to turn in her narcotic medication.
        14. In January 2015 mother moved to a one bedroom home in
        Camby, Indiana two and one-half hours from where the Child is
        placed.
        15. Mother’s employment has been sporadic throughout the
        underlying CHINS case. Mother is presently employ[ed] part-
        time, obtaining this employment well after DCS had filed the
        Verified Petition for Involuntary Termination.
        16. Mother’s visitation was very inconsistent with the child.
        Mother’s visitation was suspended the majority of the time
        throughout the pendency of the underlying CHINS case due to
        her inability to consistently submit clean drug screens.
        17. Mother was allowed telephone visitation and even those were
        inconsistent and inappropriate promises were made during the
        phone visits causing the child trauma. Telephone visits were
        suspended on February 26, 2015 due to concerns these visits were
        detrimental to the child.
        …
        19. …Mother did not complete the parenting assessment. Mother
        did not complete the psychological assessment. Mother was to
        complete a 16 week substance abuse treatment, this took mother
        over 52 weeks to finally complete.
        20. Mother was provided Home Based Rehabilitation Services
        (RSP) to assist in obtaining employment and suitable housing for
Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 4 of 13
        herself and Child but she could not maintain consistent
        employment or housing.
        21. Throughout the underlying CHINS case, Mother did not
        demonstrate that she was ready and able to parent Child: Mother
        was resistant to services, failed to complete services, and failed to
        demonstrate an ability to benefit from services she had received
        and continued to test positive for illicit drugs; when mother could
        be located to be tested.
        22. Mother did not stay in contact with DCS.
        23. Mother’s last contact with DCS was January of 2015.
        24. Mother’s failure to remedy the reasons for placement outside
        the home of her home and her display of habitual patterns of
        conduct during the underlying CHINS case demonstrates a
        probability of future neglect or deprivation of the child.
        25. Based on Mother’s lack of progress and commitment to
        improve her ability to provide a drug free, stable, consistent, and
        nurturing home for the Child and the Child’s need for stability,
        DCS Family Case Manager, Lauren Zylla-Whetstone, testified
        that the reasons for placement outside the home of the parents
        will not be remedied and the Department’s recommendation of
        termination of parental rights and adoption are a satisfactory
        plan for care and treatment of the child.
        26. The CASA Representative, Lisa O’Dell testified that
        adoption and termination of parental rights was in the Child’s
        best interests. CASA testified that due to the length of the
        underlying CHINS case, the inconsistency of the mother, the
        missing of visitations by mother causing the Child issues, it is in
        the best interest of the Child to terminate parental rights because
        mother was unable to offer the child what the child needs.


Mother’s App. pp. 10-13. Mother appeals the trial court’s order terminating her

parental rights.



Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 5 of 13
                                 Discussion and Decision
[3]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of a parent to establish a home and raise his or her child. Bester

      v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005).

      Further, we acknowledge that the parent-child relationship is “one of the most

      valued relationships of our culture.” Id. However, although parental rights are

      of a constitutional dimension, the law allows for the termination of those rights

      when a parent is unable or unwilling to meet his responsibility as a parent. In re

      T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

      parental rights are not absolute and must be subordinated to the child’s interests

      in determining the appropriate disposition of a petition to terminate the parent-

      child relationship. Id.


[4]   The purpose of terminating parental rights is not to punish the parent but to

      protect the child. Id. Termination of parental rights is proper where the child’s

      emotional and physical development is threatened. Id. The trial court need not

      wait until the child is irreversibly harmed such that his physical, mental, and

      social development is permanently impaired before terminating the parent-child

      relationship. Id.


[5]   Mother contends that the evidence presented at the evidentiary hearing was

      insufficient to support the trial court’s order terminating her parental rights. In

      reviewing termination proceedings on appeal, this court will not reweigh the

      evidence or assess the credibility of the witnesses. In re Involuntary Termination


      Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 6 of 13
      of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only

      consider the evidence that supports the trial court’s decision and reasonable

      inferences drawn therefrom. Id. Where, as here, the trial court includes

      findings of fact and conclusions thereon in its order terminating parental rights,

      our standard of review is two-tiered. Id. First, we must determine whether the

      evidence supports the findings, and, second, whether the findings support the

      legal conclusions. Id.


[6]   In deference to the trial court’s unique position to assess the evidence, we set

      aside the trial court’s findings and judgment terminating a parent-child

      relationship only if they are clearly erroneous. Id. A finding of fact is clearly

      erroneous when there are no facts or inferences drawn therefrom to support it.

      Id. A judgment is clearly erroneous only if the legal conclusions made by the

      trial court are not supported by its findings of fact, or the conclusions do not

      support the judgment. Id.


[7]   In order to involuntarily terminate a parent’s parental rights, DCS must

      establish by clear and convincing evidence that:

              (A) one (1) of the following exists:
                       (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; or


      Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 7 of 13
                       (iii) the child has been removed from the parent and
                       has been under the supervision of a county office of
                       family and children 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) termination is in the best interests of the child; and
              (D) there is a satisfactory plan for the care and treatment of the
              child.
      Ind. Code § 31-35-2-4(b)(2) (2011). Mother does not dispute that DCS presented

      sufficient evidence to support the first and fourth elements set forth in Indiana

      Code section 31-35-2-4(b)(2).


[8]   Mother argues that DCS failed to establish by clear and convincing evidence

      that the conditions resulting in the Child’s removal from and continued

      placement outside her care will not be remedied. Mother also argues that DCS

      failed to establish by clear and convincing evidence that the continuation of the




      Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 8 of 13
      parent-child relationship poses a threat to the Child. 1 However, it is well-settled

      that because Indiana Code section 31-35-2-4(b)(2)(B) is written in the

      disjunctive, the trial court need only find either that the conditions resulting in

      removal from or continued placement outside the parent’s home will not be

      remedied or that the continuation of the parent-child relationship poses a threat

      to the child. In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans. denied.

      Therefore, where, as here, the trial court concludes that there is a reasonable

      probability that the conditions which resulted in the removal of the child from

      or the reasons for the continued placement of the child outside of the parent’s

      care would not be remedied, and there is sufficient evidence in the record

      supporting the trial court’s conclusion, it is not necessary for DCS to prove that

      the continuation of the parent-child relationship poses a threat to the child. In

      re S.P.H., 806 N.E.2d at 882.


[9]   In order to determine whether the conditions will be remedied, the trial court

      should first determine what conditions led DCS to place the child outside of

      parent’s care or to continue the child’s placement outside parent’s care, and,

      second, whether there is a reasonable probability that those conditions will be

      remedied. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied; In




      1
       Mother also argues that termination is not in the Child’s best interest. However, Mother did not offer any
      argument as to why termination is not in the Child’s best interest. Accordingly, Mother has waived this
      argument for our review. See Ind. App. Rule 46(A)(8); See In re A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d
      1150, 1156 at n.4 (Ind. Ct. App. 2013) (where parent fails to raise specific, cogent argument challenging trial
      court’s conclusions concerning certain elements of Ind. Code § 31-35-2-4, those challenges are waived on
      appeal).

      Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016               Page 9 of 13
       re S.P.H., 806 N.E.2d at 882. When assessing whether a reasonable probability

       exists that the conditions justifying a child’s removal or continued placement

       outside his parent’s care will not be remedied, the trial court must judge the

       parent’s fitness to care for the child at the time of the termination hearing,

       taking into consideration evidence of changed conditions. In re A.N.J., 690

       N.E.2d 716, 721 (Ind. Ct. App. 1997). The trial court must also evaluate the

       parent’s habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id.


[10]   A trial court may properly consider evidence of the parent’s prior criminal

       history, drug and alcohol abuse, history of neglect, failure to provide support,

       and lack of adequate employment and housing. McBride v. Monroe Cnty. Office of

       Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a trial

       court “‘can reasonably consider the services offered by [DCS] to the parent and

       the parent’s response to those services.’” Id. (quoting In re A.C.C., 682 N.E.2d

       542, 544 (Ind. Ct. App. 1997)). The evidence presented by DCS “need not rule

       out all possibilities of change; rather, DCS need establish only that there is a

       reasonable probability that the parent’s behavior will not change.” In re

       Involuntary Termination of Parent-Child Relationship of Kay L., 867 N.E.2d 236,

       242 (Ind. Ct. App. 2007).


[11]   Here, the Child was initially removed from Mother’s care due to Mother’s use

       of illegal drugs in the presence of the Child. Prior to removing the Child, DCS

       attempted to work with Mother to resolve her drug use issues by reaching an

       informal adjustment agreement (“IA”) with Mother. Mother violated the IA by

       Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 10 of 13
       failing a drug screen and failing to enroll in required services. In the two years

       leading up to the termination proceeding, Mother continued to engage in a

       pattern of negative behavior and failed to make significant positive

       improvements. Mother failed to comply with the trial court’s orders, including

       participating in a psychological or parenting assessment, maintaining contact

       with DCS, and timely completing a substance abuse program. Mother failed

       several drug screens, causing her visitation privileges with Child to be

       suspended. Mother failed to maintain stable housing, often stayed with friends

       and family, and stayed in a homeless shelter for several months. In January of

       2015, six months prior to the termination hearing, Mother moved to Camby,

       approximately two-and-one-half hours from where the Child was placed, and

       discontinued her participation in all services offered by DCS.


[12]   Family Case Manager (“FCM”) Beau Norris testified that Mother was

       noncompliant with services. Specifically, FCM Norris stated that Mother was

       inconsistent with visitation and “in January 2015, she missed every single

       appointment for her substance abuse.” Tr. p. 40. FCM Norris also described

       Mother’s phone calls with the Child as having a negative impact on the Child.

       FCM Lauren Zylla-Whetstone testified that Mother did not complete required

       services, maintain contact with DCS, or communicate updated contact

       information to DCS, which prevented FCM Zylla-Whetstone from being able

       to request drug screens from Mother. FCM Zylla-Whetstone recommended

       that Mother’s parental rights be terminated due to her inability to provide a

       stable, consistent home life for the Child. FCM Zylla-Whetsone also noted that


       Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 11 of 13
       Mother never attempted to contact her to resume visits or phone calls with the

       Child. The court-appointed special advocate Lisa O’Dell also recommended

       termination of Mother’s parental rights based on similar concerns with

       Mother’s inconsistent participation in services and visitation, the length of the

       case, and the Child’s need for stability and permanency.


[13]   The Child was placed in foster care with Stacey Disinger for the seventeen

       months preceding the termination hearing. Disinger testified that the Child had

       significant behavioral issues when she was first placed with Disinger, and that

       the Child had matured greatly since that time. Disinger also testified that the

       weekly phone conversations between the Child and her Mother were traumatic

       and detrimental for the Child, and that the Child would relapse into her earlier

       destructive behavior following these conversations.


[14]   In response to the evidence supporting termination, Mother generally argues

       that “the trial court failed to give sufficient weight to the efforts made by mother

       to achieve reunification.” Mother’s Br. p. 6. Specifically, Mother argues that at

       the time of the termination hearing, she had secured housing, “was free of

       drugs,” and “arguably, in the best position she had been since the inception of

       the CHINS case to care for and provide for the Child.” Mother’s Br. p. 7, 8.

       First, we note that Mother’s arguments amount to no more than a request for

       this court to reweigh the evidence, which we will not do. In re S.P.H., 806

       N.E.2d at 879. Furthermore, despite Mother’s claims of improvement, at the

       time of termination hearing, Mother had still not completed psychological or

       parenting assessments and had not participated in any services for

       Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 12 of 13
       approximately six months. Finally, we note that, according to FCM Zylla-

       Whetstone, Mother made herself unavailable for drug testing by moving to

       Camby. Therefore, Mother’s claims of being drug-free at the termination

       hearing were self-serving and the trial court, as the finder of fact, was under no

       obligation to credit them. See Wood v. State, 999 N.E.2d 1054, 1064 (Ind. Ct.

       App. 2013) (noting that the trier of fact is not required to believe a witness’s

       testimony even when it is uncontradicted). The trial court’s order terminating

       Mother’s parental rights is not clearly erroneous.


[15]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 92A03-1510-JT-1684 | April 11, 2016   Page 13 of 13
