MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Feb 27 2020, 7:03 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
Nancy A. McCaslin                                         Curtis T. Hill, Jr.
McCaslin & McCaslin                                       Attorney General of Indiana
Elkhart, Indiana
                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Matter of the                                  February 27, 2020
Termination of the Parent Child                           Court of Appeals Case No.
Relationship of T.L. (Minor                               19A-JT-1949
Child);                                                   Appeal from the Elkhart Circuit
L.L. (Mother),                                            Court
                                                          The Honorable Ashley Mills
Appellant-Respondent,
                                                          Colburn, Special Judge
        v.                                                Trial Court Cause No.
                                                          20C01-1903-JT-8
Indiana Department of Child
Services,
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020                 Page 1 of 15
                                              Statement of the Case
[1]   L.L. (“Mother”) appeals the termination of the parent-child relationship with

      her child, T.L. (“T.L..”), claiming that the 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 T.L.’s removal or the

      reasons for placement outside Mother’s home will not be remedied; (2) a

      continuation of the parent-child relationship poses a threat to the child’s well-

      being; and (3) termination of the parent-child relationship is in the child’s best

      interests. Concluding that there is sufficient evidence to support the trial court’s

      decision to terminate the parent-child relationship, we affirm the trial court’s

      judgment.1


[2]   We affirm.


                                                             Issue
                 Whether there is sufficient evidence to support the involuntary
                 termination of Mother’s parental rights.


                                                             Facts
[3]   Mother is the parent of daughter, T.L., who was born in May 2018. At the time

      of T.L.’s birth, she tested positive for methamphetamine, and Mother tested

      positive for methamphetamine and amphetamine. DCS removed T.L. from




      1
          T.L.’s father voluntarily relinquished his parental rights and is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020                   Page 2 of 15
      Mother’s care and initially placed T.L. with her father. A few days later, when

      T.L.’s father tested positive for cocaine, DCS placed T.L. in foster care.


[4]   DCS filed a petition alleging that T.L. was a child in need of services

      (“CHINS”). At the initial hearing, Mother admitted that T.L. was a CHINS.

      The trial court adjudicated T.L. to be a CHINS in June 2018. Following a

      dispositional hearing in July 2018, the trial court ordered Mother, in relevant

      part, to: (1) refrain from using illegal substances; (2) complete a substance

      abuse assessment and follow treatment recommendations; (3) submit to random

      drug screens; (4) attend scheduled supervised visitation with T.L.; (5) complete

      a parenting assessment and follow all recommendations; (6) obtain and

      maintain suitable, safe, and stable housing; (7) participate in home-based

      counseling and follow all recommendations; (8) maintain weekly contact with

      the DCS family case manager (“FCM”); (9) allow the FCM to make

      announced and unannounced visits to Mother’s home; and (10) keep all

      appointments. The trial court also appointed a court appointed special

      advocate (“CASA”).


[5]   Thereafter, FCM Aaron Gray (“FCM Gray”), who worked with Mother

      throughout the CHINS and termination proceedings, referred Mother to

      various services. Mother initially engaged in some of the services but did not

      complete them, and she continued to test positive for methamphetamine.


[6]   FCM Gray referred Mother to Lifeline for individual therapy, home-based

      services, and supervised visitation. Therapist, Amy Sturma (Therapist


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020   Page 3 of 15
      Sturma”) worked with Mother from July to December 2018 and had about

      thirty sessions with Mother to help her deal with past trauma and substance

      abuse issues. Mother informed Therapist Sturma that she had a history of

      substance abuse with marijuana, alcohol, opiates, and cocaine. Mother also

      told her therapist that “meth was her current drug choice[.]” (Tr. Vol. 2 at 106).

      Additionally, Barbara Henderson (“Henderson”), who was a home-based case

      manager through Lifeline, worked with Mother for three months by supervising

      Mother’s visitation with T.L. and by trying to help Mother obtain housing.


[7]   FCM Gray also referred Mother to Key Counseling for a substance abuse

      assessment, which Mother completed. Based on the scope and duration of

      Mother’s previous drug use, Key Counseling’s primary recommendation was

      that Mother needed to complete an inpatient treatment program. FCM Gray

      then helped Mother to enroll in an inpatient drug treatment program at the

      YWCA in September 2018. Mother, however, did not complete the program,

      leaving after two weeks. After she left the inpatient treatment program, Mother

      “didn’t have any place to go” so she “stayed with friends” and “slept in [her]

      car for a while.” (Tr. Vol. 2 at 149). Additionally, after Mother quit her

      inpatient treatment, her visits with T.L. became “intermittent[.]” (Tr. Vol. 2 at

      99).


[8]   Mother failed to remain drug free, and she continued to test positive for

      methamphetamine. In October 2018, given Mother’s continued

      methamphetamine use, DCS requested that Mother be drug tested prior to

      supervised visits with T.L. The trial court granted the request and ordered that

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020   Page 4 of 15
       Mother’s visit would be cancelled if she were to have a positive screen.

       Thereafter, FCM Gray gave Mother an oral drug screen on the day of visits, but

       she was not able to have any visits because of positive test results. Mother’s last

       visit with T.L. was in November 2018.


[9]    Later, in December 2018, Mother participated in an outpatient treatment

       program at the Center for Positive Change. Mother was a “no show” on three

       of her appointments and did not complete the program. (Tr. Vol. 2 at 124).

       The outpatient program discharged Mother in December 2018 because the

       program recommended that Mother needed an inpatient drug treatment

       program.


[10]   Within a week of her discharge, Mother was arrested on a drug possession

       charge in Michigan and spent time in jail.2 Thereafter, Mother failed to contact

       her Lifeline service providers, causing them to cancel her services.


[11]   Mother also failed to maintain contact with her FCM, including letting more

       than one month pass without communication. On March 8, 2019, while out on

       bond from her criminal case, Mother met with FCM Gray. He administered an

       oral drug screen, and Mother tested positive for methamphetamine. Mother

       told FCM Gray about her criminal charges and indicated that she would try to

       get into an inpatient program.




       2
           The record on appeal does not indicate what drug Mother was charged with possessing.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020          Page 5 of 15
[12]   That same day, DCS filed a petition to terminate Mother’s parental relationship

       with T.L.3 The trial court held a termination hearing on June 17, 2019. At the

       time of the hearing, Mother had been sentenced in her Michigan criminal case

       and was attending a court-ordered inpatient drug treatment program in

       Saginaw, Michigan as part of probation. Mother appeared at the hearing via

       video.


[13]   Therapist Sturma testified that she had tried to help Mother work on her past

       trauma and issues with methamphetamine use. The therapist testified that

       when Mother “was sober, she was great in working on the issues[,]” but that

       when “she was using[,] she would deny or put blame on other people or say

       that [she had a] contact buzz[.]” (Tr. Vol. 2 at 107). Therapist Sturma testified

       that she was able to recognize when Mother had been using methamphetamine

       because her physical appearance would show it. For example, Mother’s body

       posture would be different, her face would become “broken out[,]” and her nose

       would be affected because Mother sometimes snorted the methamphetamine.

       (Tr. Vol. 2 at 108). Therapist Sturma also testified that Mother was “attentive”

       and “patient” during her supervised visits with T.L. but that Mother was

       required to have a drug screen for methamphetamine before having visitation

       because T.L. “was having reactions from [Mother] or her clothes[.]” (Tr. Vol. 2

       at 108).




       3
        After DCS filed the termination petition, Mother filed a motion for change of judge. The trial court granted
       Mother’s motion, and a special judge was assigned to the case.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020                Page 6 of 15
[14]   Henderson, who was Mother’s home-based case manager, testified that Mother

       had discussed her methamphetamine use history with her and had stated that

       “she just couldn’t quite get off of it.” (Tr. Vol. 2 at 100). When Henderson

       worked with Mother during the CHINS proceeding, Mother admitted to

       Henderson the times that she had used methamphetamine. Henderson testified

       that during those time, Mother had blamed her use on being “with the wrong

       people at the wrong time and the wrong place.” (Tr. Vol. 2 at 100). Henderson

       also testified that Mother had quit her inpatient treatment at the YWCA against

       the advice of Lifeline and her therapist. Additionally, Henderson testified that

       while Mother initially had some visitation with T.L., her visitation had stopped

       in November 2018 when Mother had “disappeared” and had failed to contact

       her. (Tr. Vol. 2 at 101).


[15]   FCM Gray testified that Mother had failed to comply with her court-ordered

       services by continuing to use methamphetamine, failing to complete a

       substance abuse treatment program, and failing to have weekly visitation with

       T.L. He testified that Mother’s continued methamphetamine use had led DCS

       to conduct a drug screen of Mother on the day of any scheduled visit with T.L.

       and that Mother had not had visitation with T.L. for the seven months prior to

       the termination hearing. FCM Gray also testified that he had referred Mother

       to Oaklawn for a parenting assessment but that he did not have any records to

       show that she had completed the assessment.


[16]   When asked whether Mother was likely to remedy the reasons requiring the

       removal of T.L. from Mother’s care, FCM Gray responded that she was not.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020   Page 7 of 15
       He pointed out that, despite Mother’s previous court order to complete drug

       treatment to address her methamphetamine use and her opportunities to

       complete inpatient and outpatient drug treatment programs, she had failed to

       complete the necessary treatment. FCM Gray testified that DCS was

       concerned about permanency for T.L. and that Mother had “not shown since

       the beginning of this case that she [wa]s willing to work as hard as she c[ould]

       to get [T.L.] in that permanency position.” (Tr. Vol. 2 at 133). He recognized

       that, at the time of the hearing, Mother was in an inpatient drug treatment

       program in Michigan but pointed out that her attendance in that program only

       came about because of a court order in her criminal case. FCM Gray further

       testified that even if Mother were to successfully complete the Michigan drug

       treatment in a few months, she “would still have to maintain sobriety, . . . find

       housing, [and] . . . show some form of stability before DCS could possibly even

       talk about going back and trying to get [T.L.] in mom’s care” and that there was

       no indication of “how long that would be[.]” (Tr. Vol. 2 at 132-33). He opined

       that termination of Mother’s parental rights was in T.L.’s best interest.

       According to FCM Gray, T.L. had been “thriving” and had “a serious bond”

       with her foster parents in her pre-adoptive home. (Tr. Vol. 2 at 134, 135).


[17]   CASA Payton Kammerdiener (“CASA Kammerdiener”) testified that she had

       been T.L.’s CASA since the beginning of the CHINS case. CASA

       Kammerdiener recommended that Mother’s parental rights be terminated and

       opined that termination was in T.L.’s best interests because Mother had not

       seen T.L. since November 2018 and was essentially a “stranger” to T.L., did


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020   Page 8 of 15
       not have stable housing or employment, and had failed to maintain sobriety and

       because T.L. had “bonded extremely well” with her pre-adoptive foster parents.

       (Tr. Vol. 2 at 142, 143).


[18]   Mother testified that she was currently on probation for two and one-half years

       from her Michigan criminal case and that she was enrolled in a Michigan

       inpatient treatment program as part of probation. She testified that she had

       been “clean” for three months while in the inpatient program and that she had

       an additional three months remaining to complete the program. (Tr. Vol. 2 at

       151). Additionally, Mother testified that upon her release from the inpatient

       program, she was required to live in a sober living facility in Niles, Michigan

       until her probation could be transferred to Indiana. Mother challenged FCM

       Gray’s testimony regarding her lack of visitation with T.L. and her failure to get

       a parenting assessment. Mother acknowledged that she had not seen T.L. since

       November 2018, but she stated that “[e]very time [she] got out of jail” she had

       asked FCM Gray if she could visit with T.L. (Tr. Vol. 2 at 153). In regard to

       her failure to complete a parenting assessment, Mother testified that she had not

       been aware that FCM Gray had referred her to Oaklawn for an assessment, and

       she stated that she had had a parenting assessment done by Lifeline.


[19]   In July 2019, the trial court issued a detailed order terminating Mother’s

       parental rights. Mother now appeals.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020   Page 9 of 15
                                                    Decision
[20]   Mother argues that there is insufficient evidence to support the termination of

       her parental rights. The Fourteenth Amendment to the United States

       Constitution protects the traditional right of parents to establish a home and

       raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,

       the law provides for termination of that right when parents are unwilling or

       unable to meet their parental responsibilities. In re Bester, 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), reh’g denied, trans. denied, cert. denied.


[21]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[22]   A petition to terminate parental rights must allege:


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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020   Page 10 of 15
                        (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.

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

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[23]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she contends that the evidence

       is insufficient to show that there is a reasonable probability that: (1) the

       conditions that resulted in T.L.’s removal or the reasons for placement outside

       Mother’s home will not be remedied; and (2) a continuation of the parent-child

       relationship poses a threat to T.L.’s well-being.


[24]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.2d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in the T.L.’s

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020   Page 11 of 15
       removal or the reasons for her placement outside Mother’s home will not be

       remedied.


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

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first 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. E.M., 4 N.E.3d at 643.


[26]   Here, T.L. was removed from Mother’s care at T.L.’s birth because of Mother’s

       drug use, namely methamphetamine. Indeed, Mother’s methamphetamine use

       caused T.L. to test positive for methamphetamine. Our review of the evidence

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020   Page 12 of 15
reveals that, at the time of the termination hearing, Mother had not completed

the court-ordered requirements in the CHINS dispositional order. Most

notably, Mother continued to use methamphetamine during the CHINS

proceeding, and she had not completed substance abuse treatment to address

her methamphetamine use. In its termination order, the trial court recognized

that Mother was attending an inpatient treatment program at the time of the

termination hearing but noted that she was “required to attend the program as a

condition of her criminal cases arising from illegal substance possession” and

that her “failure to remain at her current treatment facility would lead to her

arrest and a violation of her criminal probation.” (App. Vol. 2 at 17). The trial

court explained that “Mother’s compliance just prior to the termination

evidentiary hearing due to the threat of criminal sanctions [wa]s not persuasive”

to the court. (App. Vol. 2 at 17). Rather, when concluding that there was

“clear and convincing evidence that the reasons that led to the removal of [T.L.]

from Mother’s care w[ould] not be remedied[,]” the trial court referenced

Mother’s extensive substance abuse history, her failure to complete any

substance abuse treatment despite the CHINS dispositional order, her failure to

visit with T.L. since November 2018, her failure to comply with therapy, her

failure to obtain stable housing, and her failure to obtain a parenting

assessment.4 (App. Vol. 2 at 17). This evidence supports the trial court’s




4
 Mother contends that the trial court’s conclusion that Mother had failed to obtain a parenting assessment
was erroneous. Here, FCM Gray testified that he had referred Mother to Oaklawn for a parenting
assessment. Mother testified that she was unaware of that referral and that Lifeline had done a parenting


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020              Page 13 of 15
       conclusion that there was a reasonable probability that the conditions that

       resulted in T.L.’s removal would not be remedied. We find no error.


[27]   Mother also argues that there is insufficient evidence that the termination was

       in T.L.’s best interests. 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

       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) (internal

       quotation marks and citation omitted). 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).




       assessment. Two service providers from Lifeline testified, and they did not mention that they had done a
       parenting assessment. The trial court heard and weighed all this testimony, and we will not reweigh the trial
       court’s credibility determination.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020               Page 14 of 15
[28]   Here, our review of the evidence reveals that Mother has a history of substance

       abuse with marijuana, alcohol, opiates, cocaine, and methamphetamine.

       Mother’s methamphetamine use caused T.L. to test positive for

       methamphetamine at her birth and precipitated the removal of T.L. from

       Mother’s care. Mother’s continued use of methamphetamine and failure to

       complete drug treatment to address her methamphetamine use during the

       CHINS proceedings caused the continued placement of T.L. outside Mother’s

       home. At the time of the termination hearing, Mother was in a court-ordered

       residential drug treatment program as part of her probation from her Michigan

       drug possession case. Mother had historically been unable to provide stability

       and housing for T.L. and was unable to provide the same at the time of the

       termination hearing. In addition, FCM Gray and CASA Kammerdiener

       testified that termination was in T.L.’s best interests. The testimony of these

       service providers, as well as the other evidence previously discussed, supports

       the trial court’s conclusion that termination was in T.L.’s best interests.

       Because there is sufficient evidence to support the termination of Mother’s

       parental rights, we affirm the trial court’s judgment.


[29]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1949 | February 27, 2020   Page 15 of 15
