Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                     May 22 2013, 9:29 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

MARK SMALL                                  NATALIE FANTETTI
Indianapolis, Indiana                       DCS, Miami County Local Office
                                            Peru, Indiana

                                            ROBERT J. HENKE
                                            DCS Central Administration
                                            Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF:   )
                                    )
D.F. & H.D. (Minor Children),       )
                                    )
              and,                  )
                                    )
J.D., (Mother),                     )
                                    )
        Appellant-Respondent,       )
                                    )
                vs.                 )            No. 52A05-1210-JT-531
                                    )
THE INDIANA DEPARMENT OF            )
CHILD SERVICES,                     )
                                    )
        Appellee-Petitioner.        )
                           APPEAL FROM THE MIAMI SUPERIOR COURT
                                The Honorable Daniel C. Banina, Judge
                           Cause No. 52D02-1110-JT-24 & 52D02-1110-JT-25


                                                 May 22, 2013

                     MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge

                                               Case Summary

           J.D. (“Mother”) appeals the termination of her parental rights to her children, D.F.

and H.D.1 We affirm.

                                                      Issue

           The sole restated issue is whether there is sufficient evidence to support the

termination of Mother’s parental rights.

                                                     Facts

           D.F. was born in 1997, and H.D. was born in 2001. Mother has a third child,

D.C., who is now over eighteen years old. When D.C. turned thirteen years old, Mother

smoked marijuana with him and gave him a “party tattoo” that was supposed to signify

that he was old enough to begin smoking marijuana. Tr. p. 158. Mother also smoked

marijuana with D.F. on her thirteenth birthday and gave her a “party tattoo” as well. Id.

at 124. Mother frequently had guests at her house and would smoke marijuana with them

in her bedroom while the children were home. D.F. felt uncomfortable with many of

these guests. Additionally, Mother has been prescribed a number of medications for

1
    D.F.’s and H.D.’s fathers have not appealed the termination of their parental rights to their children.
                                                        2
ailments including fibromyalgia, anxiety, and depression. At times, Mother permitted

D.C. to sell her prescription Klonopin pills when she needed money.

       On July 27, 2010, the Department of Child Services (“DCS”) removed the

children from Mother’s home after a visit revealed that the home was extremely dirty; the

removal was also based upon the marijuana usage and educational neglect, with D.F. and

H.D. missing many days of school and having poor grades and H.D. repeatedly going to

school with head lice. In April 2009, DCS had previously substantiated that the children

were being subjected to educational neglect as well as living in a health-endangering

environment.

       After removal, D.F. and H.D. were placed with a foster family. D.C. is now living

independently. Mother later admitted that the children were CHINS. The dispositional

order required Mother, in part, to participate in home-based services; to follow all

recommendations from a substance abuse screening; to participate in random drug and

alcohol screens; to participate in Alcoholics Anonymous (“AA”) or Narcotics

Anonymous (“NA”) meetings; to participate in individual and family counseling as

deemed appropriate; and to not expose her children to people with a history of drug or

other illegal activity.

       As a result of what the DCS discovered at Mother’s home, she was charged with

three counts of Class D felony neglect of a dependent. When she was arrested on these

charges, the State obtained a no contact order prohibiting Mother from contacting her

children and from going to her home. However, on September 30, 2010, the State agreed

                                           3
to modify the no contact order to permit contact with the children under the auspices of

the DCS and to allow her to go back to her home. On December 9, 2010, Mother pled

guilty to one count of Class D felony neglect of a dependent, to be sentenced as a Class A

misdemeanor. Mother was sentenced to time served and probation.

      Mother began undergoing individual counseling in the fall of 2010, as

recommended after a psychological evaluation, but she had quit going by the end of the

year. Mother underwent another evaluation in October 2011, at DCS’s behest, which

again recommended she undergo individual counseling. Mother did not do so. One

psychologist believed that Mother had borderline personality disorder, which is defined

as having mood instability and having volatile interpersonal relationships.       Another

believed Mother had histrionic personality disorder, which is described as having a need

to be the center of attention and a tendency to “make a mountain out of a molehill.” Id. at

221. Because Mother never completed individual counseling, she and the children never

underwent family counseling.

      Mother also failed to follow through on recommendations made by a substance

abuse evaluation, although she claimed to have completed an intensive outpatient

treatment (“IOT”) program. DCS did not refer Mother to this program and so it did not

receive information regarding Mother’s progress in it. Mother also completed four steps

of a twelve-step AA/NA program.

      Between July 2010 and January 2012, Mother underwent approximately forty drug

screens through DCS.      Mother was not always compliant with undergoing random

                                            4
screens, however. Her only positive test, for marijuana usage, occurred on September 30,

2011, after she had completed the IOT program. This test, which detects marijuana in the

body within seventy-two hours of use, was taken one day after Mother had in-home

visitation with the children for the first time since their removal. There were no more in-

home visitations after this test result. Although Mother was still on probation at the time

of this test, her probation was not revoked after she passed a test given by the probation

department two weeks after the failed DCS test. Mother was soon thereafter successfully

discharged from probation.

       Shortly after the children were removed from Mother’s home, she began dating a

man who eventually moved in with her. This frustrated D.F., who believed Mother had a

tendency to put her relationships with various men ahead of her children. The boyfriend

refused to take a drug test through DCS, which would have been a requirement if Mother

was ever going to regain custody of the children while he lived with Mother. The

boyfriend also has a prior felony conviction, meaning that DCS ruled him out as an

appropriate person to live with Mother and the children.

       Mother also eventually worked on cleaning and repairing her home so that it

would be suitable for the children, although it “took a very long time to get her

motivated” to do so. Id. at 269. A home-based counselor opined that the home was

rendered habitable by the early summer of 2011, although the counselor also noted that

Mother had not replaced a couch in the home in which mice had previously nested. This



                                            5
counselor also believed that when Mother’s case was closed in December 2011, she had

learned some parenting skills but not enough to be an effective parent.

       After D.F. and H.D. were removed from Mother’s care, their attendance at school

vastly improved and H.D. has had no reoccurrence of head lice. D.F. now receives very

good grades in school, and while H.D.’s grades are not as good as D.F.’s, they have

improved and previous behavioral issues H.D. had been experiencing in school were

reduced. D.F. has said that she does not want to live with Mother again. The foster

parents also have expressed a desire to adopt D.F. and H.D.

       On October 27, 2011, the DCS filed a petition to terminate Mother’s parental

rights. The trial court held a hearing on the petition on June 4, 2012. On September 24,

2012, the trial court entered its order with findings terminating Mother’s parental rights.

Mother now appeals.

                                        Analysis

       “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).

We consider only the evidence and reasonable inferences most favorable to the judgment.

Id. “We must also give ‘due regard’ to the trial court’s unique opportunity to judge the

credibility of the witnesses.” Id. (quoting Indiana Trial Rule 52(A)). Where a trial court

enters findings of fact and conclusions thereon, as the trial court did here, we apply a

two-tiered standard of review. Id. “First, we determine whether the evidence supports

the findings, and second we determine whether the findings support the judgment.” Id.

                                            6
We will set aside the trial court’s judgment only if it is clearly erroneous, which occurs if

the findings do not support the trial court’s conclusions or the conclusions do not support

the judgment. Id.

       A petition to terminate a parent-child relationship must allege:

              (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 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;

                                              7
              (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 has the burden of proving these allegations by clear

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

       Mother contends there is insufficient evidence to support the trial court’s finding

of a reasonable probability that the conditions leading to the removal of D.F. and H.D.

from her care would not be remedied. When deciding whether there is a reasonable

probability that the conditions leading to a child’s removal will not be remedied, a trial

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

termination hearing and take into consideration evidence of changed conditions. In re

J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. Additionally, a court may

consider not only the basis for a child’s initial removal from the parent’s care, but also

any reasons for a child’s continued placement away from the parent. In re A.I., 825

N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. The court may also consider the

parent’s habitual patterns of conduct, as well as 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. McBride v. Monroe County Office of Family and

Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). A court may likewise consider

services offered by the DCS to the parent and the parent’s response to those services. Id.

“Finally, we must be ever mindful that parental rights, while constitutionally protected,

                                              8
are not absolute and must be subordinated to the best interests of the child when

evaluating the circumstances surrounding termination.” Id.

       Here, D.F. and H.D. were removed from Mother’s care in July 2010 because of

the poor condition of the home and hygiene issues of H.D., i.e. head lice, educational

neglect, and Mother’s extensive drug use while the children were home, including

introducing D.F. and D.C. to marijuana usage. The DCS had also substantiated similar

conditions in Mother’s home in April 2009. Regarding the condition of the home, the

trial court did find that Mother had rectified that condition by the time of the termination

hearing—several months before that, in fact—and there is evidence to support that

finding. However, the home-based counselor who assisted and observed the clean-up

process believed Mother was slow to begin that process.

       Regarding Mother’s drug usage, she chose to complete a drug treatment program

that fell outside DCS’s auspices. As a result, it had no knowledge of how successful she

was in that program. Mother makes much of the fact that of as many as forty drug tests

that she underwent from the beginning of the CHINS case to January 2012, she only

tested positive for an illegal substance, marijuana, on one occasion. That one occasion,

however—September 30, 2011—was one day after her very first in-home visitation with

the children since they had been removed from her care. That is very troubling, given the

history of drug usage between Mother and her children. Mother insists that she did not

smoke marijuana and does not know how it showed up in her test, but the lab technician

discounted the possibility of a false positive. Moreover, Mother does not dispute the trial

                                             9
court’s finding that, based on Mother’s sometimes-spotty compliance with random drug

testing and the fact that marijuana could be discovered only within seventy-two hours of

use, she could have been continuing to smoke marijuana on occasion without detection.

Finally, the positive marijuana test took place approximately one month after she had

completed the unauthorized IOT drug program, indicating the program may not have

worked.

       Mother also twice failed to follow through with individual therapy for herself.

This therapy was recommended by at least two psychologists to address personality

issues that, as described, clearly would have negatively impacted her parenting and her

relationships with her children. Instead of completing a course of therapy, Mother would

quit going when she disagreed with or decided she did not like the therapist. Mother’s

failure to complete individual therapy also prevented the commencement of therapy for

the whole family, which was required by the CHINS dispositional order.

       Finally, we note Mother’s beginning of a relationship with a man, who later

moved in with her, shortly after D.F. and H.D. were removed from her custody. This

boyfriend has been ruled out by DCS as an appropriate co-inhabitant with Mother and her

children. Thus, any reunification between Mother and her children would be precluded

by her current relationship. D.F. in particular stated that Mother’s entering into this

relationship shortly after the children’s removal was consistent with Mother’s self-

centered past practice of placing relationships with men above relationships with her

children.

                                          10
       In sum, we cannot deny that Mother made some progress during the pendency of

the CHINS action, most notably in the eventual cleaning up and repairing of her home.

However, the overall pattern of Mother’s conduct was that her efforts to comply with

DCS services often were half-hearted or incomplete. Without fully complying with the

DCS services, there remains a substantial risk of D.F. and H.D. again being neglected if

they were to be returned to Mother. Additionally, there was evidence that one of the

most troublesome aspects of Mother’s parenting—her drug use in the home—was not

adequately addressed by her. It also is worth noting that the conditions leading to the

children’s removal had been documented more than a year before that time, indicating

that Mother has had unresolved difficulties with parenting for a substantial period

predating the CHINS action. As such, we cannot say the trial court clearly erred in

finding sufficient evidence of a reasonable probability that the conditions that caused the

removal of D.F. and H.D. from her care would not be remedied.

       Mother also claims there is insufficient evidence that termination of her parental

rights was in D.F. and H.D.’s best interests. In determining whether termination is in the

best interests of a child, a court may look beyond the factors identified by the DCS and

look to the totality of the evidence. In re I.A., 903 N.E.2d 146, 155 (Ind. Ct. App. 2009).

In making a best interests determination, courts must subordinate the interests of the

parent to those of the child. Id. Courts need not wait until a child is irreversibly harmed

before terminating the parent-child relationship. Id. Termination of parental rights is in a

child’s best interests if his or her emotional and/or physical development is threatened.

                                            11
Stewart v. Randolph County Office of Family & Children, 804 N.E.2d 1207, 1212 (Ind.

Ct. App. 2004), trans. denied.

          Here, before the children’s removal from Mother’s care, they were missing much

time at school and receiving poor grades. H.D. was suffering from uncured head lice.

After placement in their current foster home, both D.F. and H.D.’s grades and attendance

improved, with D.F.’s grade improvement being particularly dramatic. H.D.’s head lice

was cured shortly after moving in with the foster parents and has not returned. D.F.

expressed her personal wish that she not return to live with Mother. This evidence

establishes that both D.F. and H.D.’s emotional/mental and physical development was

threatened while in Mother’s care, while that threat has been alleviated during their stay

with the foster family who wishes to adopt them. There is sufficient evidence that

termination of Mother’s parental rights is in the children’s best interests.2

                                              Conclusion

          The trial court’s decision to terminate Mother’s parental rights is supported by the

evidence and not clearly erroneous. We affirm.

          Affirmed.

NAJAM, J., and BAILEY, J., concur.




2
    Mother makes no challenge to the adequacy of the DCS’s plan following termination.

                                                    12
