MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                     Oct 23 2019, 10:58 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
Steven Knecht                                             Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                                Attorney General of Indiana
Lafayette, Indiana
                                                          Marjorie Lawyer-Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          October 23, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          19A-JT-980
H.M. (Minor Child)                                        Appeal from the Tippecanoe
                                                          Superior Court
and
                                                          The Honorable Bradley K. Mohler,
B.L. (Mother),                                            Special Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          79D03-1809-JT-125
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019                      Page 1 of 11
      Baker, Judge.


[1]   B.L. (Mother) appeals the juvenile court’s order terminating her parent-child

      relationship with H.M. (Child), arguing that the evidence is insufficient to

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


                                                       Facts
[2]   Child was born to Mother and A.M. (Father)1 on February 2, 2016. On

      November 1, 2016, the Department of Child Services (DCS) became involved

      with the family and removed Child from the home due to Mother’s untreated

      mental health problems, substance abuse issues, and a failed suicide attempt.

      DCS did not place Child with Father because Father could not provide

      documentation proving paternity of the Child. Even after Father established

      paternity, Child remained in foster care with a half-sibling. Mother already had

      two other children in foster care at the time.


[3]   On November 2, 2016, DCS filed a petition alleging that Child was a Child in

      Need of Services (CHINS). At the conclusion of the detention hearing on that

      same day, Mother admitted to being addicted to heroin. Mother has a long

      history of mental illness and substance abuse. Mother has been diagnosed with

      bipolar disorder and has admitted to frequently using both methamphetamine

      and heroin. Mother was also taken into custody because of an active warrant




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


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019   Page 2 of 11
      for prostitution. The juvenile court adjudicated Child to be a CHINS on

      December 29, 2016, and entered a dispositional decree on January 20, 2017.

      Under the terms of that dispositional decree, Mother was required to:


              1. Participate in parenting time pursuant to party agreement and
              court order.
              2. Participate in a substance use assessment and follow all
              recommendations.
              3. Submit to all drug screen requests, random and non-random.
              4. Participate in case management and follow all
              recommendations.
              5. Participate in mental health assessment and follow all
              recommendations.


      Appellee’s App. Vol. II p. 83-84. Additionally, both Mother and Father were

      required to attend all hearings and court proceedings; provide updates to DCS,

      Family Case Managers (FCMs), and Court-Appointed Special Advocates

      (CASAs); maintain safe and suitable housing for Child; not possess or consume

      alcohol or any illegal or non-prescribed controlled substances; obtain a stable

      source of income; and pay child support. See generally id. at 82-83.


[4]   Soon enough, Mother began returning positive drug screens. In April 2017, July

      2017, October 2017, and February 2018, the juvenile court determined that

      Mother had not complied with the terms of the CHINS dispositional decree.

      Mother failed to attend therapy appointments and to obtain the medication

      needed to treat her ongoing mental health issues.


[5]   Mother initially participated in fully supervised visitations with Child at a DCS

      facility. Eventually, Child was allowed to stay at Mother’s home for overnight


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019   Page 3 of 11
      visits. However, FCM Sally Messmer testified that by February 2018, Mother

      had been consistently missing appointments and drug screens and returning

      positive drug screens. Thereafter, DCS stopped the overnight visits.


[6]   The juvenile court suspended Mother’s parenting time on May 14, 2018, after

      Mother admitted to using methamphetamine. The visits were reinstated on

      November 13, 2018, after Mother had returned some clean drug screens and

      participated with services. However, Mother proceeded to miss several visits

      and returned more positive drugs screens. The juvenile court again suspended

      visitation, and Mother has not visited with Child since December 7, 2018.


[7]   During the entirety of the CHINS proceedings, Mother held a variety of part-

      time jobs. Additionally, Mother’s only housing was an apartment she shared

      with her boyfriend, B.S. The record reveals that Mother was receiving

      significant financial assistance from B.S. and could not maintain housing on her

      own. After B.S. became ill and was hospitalized for an extended period of time,

      the couple had to move out in June 2018. The record does not reveal where

      Mother has been living since then.


[8]   DCS filed a petition for termination of parental rights on September 4, 2018. At

      the January 31, 2019, fact-finding hearing, both FCM Messmer and CASA

      Hilary Laughner testified that Mother had not been consistent in her treatment,

      cooperation with DCS, or commitment to the proceedings for two years and

      that she was unable to properly care for Child due to her severe mental health

      issues and drug dependency. Mother testified that she had been making


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019   Page 4 of 11
       improvements and had started a new treatment regimen that was showing

       positive results. She also testified that she plans to work at the Salvation Army

       in order to pay for prospective housing. However, Mother did not specify when

       her job would begin or when she would acquire said housing.


[9]    On March 31, 2019, the juvenile court issued an order terminating Mother’s

       parent-child relationship with Child. Mother now appeals.


                               Discussion and Decision
                                       I. Standard of Review

[10]   When reviewing an order on the termination of a parental relationship:


               We do not reweigh the evidence or determine the credibility of
               witnesses, but consider only the evidence that supports the
               judgment and the reasonable inferences to be drawn from the
               evidence. We confine our review to two steps: whether the
               evidence clearly and convincingly supports the findings, and then
               whether the findings clearly and convincingly support the
               judgment. Reviewing whether the evidence “clearly and
               convincingly” supports the findings, or the findings “clearly and
               convincingly” support the judgment, is not a license to reweigh the
               evidence.


       In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (internal citations omitted) (some

       internal quotations omitted). We must give “due regard” to the juvenile court’s

       ability to judge witness credibility firsthand, and we will not set aside its

       findings or judgment unless clearly erroneous. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019   Page 5 of 11
[11]   Pursuant to Indiana Code section 31-35-2-4(b)(2), DCS must prove the

       following in order to terminate the parental rights for a CHINS:


               (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.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019   Page 6 of 11
       DCS must prove these allegations by clear and convincing evidence. In re N.G.,

       51 N.E.3d 1167, 1170 (Ind. 2016).


                                              II. Sufficiency

[12]   Mother’s sole argument on appeal is that the evidence is insufficient to support

       the order terminating her parent-child relationship with Child. Specifically,

       Mother contends that DCS failed to prove by clear and convincing evidence

       that the conditions that led to removal will not be remedied; that continuation

       of the parent-child relationship poses a threat to Child’s well-being; and that

       termination is not in Child’s best interest.


                                     Conditions Resulting in Removal

[13]   The juvenile court had to first determine what conditions led to DCS’s

       placement of Child in foster care and then determine whether there is a

       reasonable probability that those conditions will not be remedied. In re I.A., 934

       N.E.2d 1127, 1134 (Ind. 2010). Here, Child was removed because of Mother’s

       untreated mental health problems, substance abuse issues, and a failed suicide

       attempt. Later, in its termination order, the juvenile court held as follows:


               By choosing not to fully participate in the CHINS case, the
               Parents have demonstrated an unwillingness to change their
               behavior. A pattern of unwillingness to deal with parenting
               problems and to cooperate with those providing social services, in
               conjunction with unchanged conditions, support a finding that
               there exists no reasonable probability that the conditions will
               change, as grounds for terminating parental rights.


       Appellant’s App. Vol. II p. 27.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019   Page 7 of 11
[14]   There is ample evidence supporting this conclusion. Despite multiple

       opportunities for reform, Mother did not comply with services. Mother

       consistently failed to attend therapy sessions and to obtain the proper

       medication to treat her mental health issues, and she repeatedly refused to

       submit to drug screens. And even when she complied, many of the drug screens

       were positive—a clear violation of the terms of the CHINS dispositional decree.

       Any time Mother showed some indicia of progress, she regressed and directly

       violated the juvenile court’s orders. See, e.g., Lang v. Starke Cty. Office of Family &

       Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (holding that the juvenile

       court may “consider the parent’s response to the services offered through . . .

       DCS[]” in CHINS proceedings).


[15]   Mother frequently missed visits or provided positive drug screens, leading to the

       suspension of visits. She also failed to make any meaningful efforts to establish

       a bond with Child from the moment of birth. This failure to exercise a parental

       right to visit one’s child demonstrates a “lack of commitment to complete the

       actions necessary to preserve [the] parent-child relationship[.]” In re A.L.H., 774

       N.E.2d 896, 900 (Ind. Ct. App. 2002). Mother has not taken the DCS

       proceedings seriously, and as a result, has demonstrated that her behavior that

       led to Child’s removal will not change. Thus, the evidence is sufficient to

       support the juvenile court’s conclusion that there is a reasonable probability that

       the conditions resulting in Child’s removal will not be remedied.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019   Page 8 of 11
                                         Threat to Child’s Well-Being2

[16]   To meet this statutory element, “[c]lear and convincing evidence need not

       reveal that ‘the continued custody of the parents is wholly inadequate for the

       child’s very survival.’” Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d

       143, 148 (Ind. 2005) (quoting Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592

       N.E.2d 1232, 1233 (Ind. 1992)). “Rather, 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.’” Id. (quoting Egly, 592 N.E.2d

       at 1234). Here, the record shows that despite assistance from DCS in the form

       of inpatient treatment, medication, and supervised visits, Mother has not

       improved, threatening Child’s well-being.


[17]   In evaluating the well-being of the child, “[juvenile] courts have properly

       considered evidence of a parent’s prior criminal history, drug and alcohol

       abuse, history of neglect, failure to provide support, and lack of adequate

       housing and employment.” A.F. v. Marion Cty. Office of Family & Children, 762

       N.E.2d 1244, 1251 (Ind. Ct. App. 2002). Here, Mother has a long history of

       mental health problems, substance abuse issues, and neglect of Child. The

       evidence demonstrates that Mother is suffering from numerous health issues

       and the juvenile court found that in her current state, Mother cannot properly




       2
         We note that the termination statute is phrased in the disjunctive, and because we find that the element of
       showing that the conditions that led to Child’s removal will not be remedied has been satisfied, we are not
       required to address this issue. However, we choose to do so briefly.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019                    Page 9 of 11
       care for Child. Additionally, Mother has failed to secure full-time employment

       or adequate housing.3 Given this information, we find that the juvenile court

       did not err when it concluded that DCS proved by clear and convincing

       evidence that Mother’s continued custody of Child would be a threat to Child’s

       well-being.


                                               Best Interest of Child

[18]   “The purpose of terminating parental rights is not to punish parents but to

       protect their children.” In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001).

       “[I]n determining what is in the best interests of the children, the court is

       required to look . . . to the totality of the evidence.” Id. at 776. In so doing, the

       juvenile court must subordinate the interests of the parents to those of the

       children involved. Id.


[19]   The juvenile court determined that


                [I]t is in [Child’s] best interests that the parent-child relationship be
                terminated. The FCM and the CASA testified that termination of
                the Parents’ parental rights was in [Child’s] best interests. The
                recommendation of a child’s caseworker and guardian ad litem
                [CASA] that parental rights should be terminated support a
                finding that termination is in the child’s best interests. In Re J.C.,
                994 N.E.2d 278, 290 (Ind. App. 2013); In Re A.B., 887 N.E.2d 158
                (Ind. App. 2008).




       3
         Though Mother contends that she will soon be working for the Salvation Army and that that job will
       hopefully assist her with independent housing, we decline to consider this evidence as persuasive because it
       is, at most, speculative and aspirational.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019                  Page 10 of 11
       Appellant’s App. Vol. II p. 28-29. FCM Messmer and CASA Laughner even

       testified at the termination hearing that there is a permanency plan established

       for Child to be adopted by his foster parents. See generally Tr. Vol. II p. 150-52.

       They testified that Child is currently thriving in a safe, comfortable, and healthy

       environment and that Child needs this stability in order to grow and prosper.


[20]   Given the wealth of evidence already discussed, we find that the juvenile court

       did not err by concluding that termination of the parent-child relationship is in

       Child’s best interest. We do not dispute the small progress that Mother has

       made thus far—she claims to have found a solid inpatient treatment facility and

       that she will soon be employed and may secure housing. However, given that

       Child and Mother have virtually no bond and that she failed to take advantage

       of the mental health and substance abuse treatment available for nearly two

       years during the CHINS case, the juvenile court did not err by concluding that

       DCS proved by clear and convincing evidence that termination is in Child’s

       best interest.


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


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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-980 | October 23, 2019   Page 11 of 11
