MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                       Feb 07 2020, 10:16 am
regarded as precedent or cited before any                                          CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Amanda McIlwain                                           Curtis T. Hill, Jr.
Legal Aid Corp. of Tippecanoe County                      Attorney General of Indiana
Lafayette, Indiana
                                                          Natalie F. Weiss
                                                          Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              February 7, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
S.W. and B.W. (Minor                                      19A-JT-1899
Children),                                                Appeal from the Tippecanoe
T.H. (Mother),                                            Superior Court
                                                          The Honorable Faith A. Graham,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause Nos.
                                                          79D03-1902-JT-23
Indiana Department of Child                               79D03-1902-JT-24
Services,
Appellee-Petitioner.



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020                     Page 1 of 16
[1]   T.H. (“Mother”) appeals the Tippecanoe Superior Court’s order terminating

      her parental rights to her minor children, S.W. and B.W. Mother argues that

      the trial court’s order is not supported by sufficient evidence and that her due

      process rights were violated because she was not provided with therapeutic

      services.


[2]   We affirm.


                                   Facts and Procedural History
[3]   Mother is married to B.J.W. (“Father”),1 and they have two children: S.W.

      born in October 2015 and B.W. born in December 2016. The Tippecanoe

      County Department of Child Services (“DCS”) received a report on November

      25, 2017, alleging neglect of the children due to substance abuse. On that date,

      an anonymous person reported to 911 that Mother was suffering from an

      overdose. When law enforcement arrived, the front door was open, and Mother

      was unconscious and not breathing. Two-year-old S.W. was watching a movie

      in her room, and eleven-month-old B.W. was in a crib. There were various

      unsafe items in the crib, and the oven was turned on.


[4]   Mother was revived with two doses of Narcan and transported to the hospital.

      Eventually, law enforcement personnel learned that Christopher McCollum



      1
        Both parties testified at the fact-finding hearing that they intend to dissolve their marriage. Due to
      incarceration and other marital issues, they did not reside in the same household at all times during these
      proceedings. Father was charged with and incarcerated for numerous offenses during this case, including a
      domestic battery charge against Mother that occurred on or about November 16, 2017. Father’s parental
      rights to the children were also involuntarily terminated in these proceedings. Father does not appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020                 Page 2 of 16
      provided heroin to Mother, which they used together. He reported Mother’s

      overdose to 911. Mother was charged with maintaining a common nuisance

      and neglect of a dependent.


[5]   The children were placed with paternal grandmother and step-grandfather.

      DCS filed a petition alleging that they were Children In Need of Services

      (“CHINS”), and a dispositional order was issued in February 2018. Mother was

      ordered to complete a substance abuse assessment and treatment, random drug

      screening, a mental health assessment, domestic violence victim services,

      individual therapy, therapy with Father, and parenting time.


[6]   Mother generally complied with services during the first few months of the

      CHINS proceedings. She completed a substance abuse assessment in February

      2018, and her random drug screens were negative. In April 2018, Mother

      completed a mental health assessment and was successfully discharged from a

      domestic violence victim class. Mother had stable housing and was

      participating in supervised parenting time with the children. Mother began a

      trial home visit with the children on June 6, 2018.


[7]   However, Mother began to refuse drug screens and failed to attend therapy in

      May and June 2018. She also failed to attend a case management session in

      July 2018. On July 9, 2018, DCS received a report that Mother’s babysitter

      tested positive for marijuana. In August 2018, Mother was observed with

      bruises on her arms and face. On August 30, 2018, Mother’s hand was injured

      when Father pushed her. DCS received additional reports of domestic violence


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 3 of 16
       allegations in September 2018. Mother was referred to additional domestic

       violence services, but she did not complete the referral.


[8]    During the trial home visit, DCS performed unannounced drop-in visits at

       Mother’s home. Safety issues were noted during these visits, including

       medications that were accessible to the children and exposure to unauthorized

       individuals. During a visit on October 1, 2018, an unknown naked male was

       found hiding in Mother’s closet. Mother refused to identify the man to the visit

       facilitator.


[9]    On October 17, 2018, the trial home visit ended because Mother continued to

       allow unauthorized individuals into her home causing safety concerns for the

       children, and she was dishonest with DCS service providers. After the children

       were removed from her home, Mother attended only one visitation in

       November 2018. Mother was unsuccessfully discharged from visitation in

       December 2018 due to her lack of contact with DCS. Mother resumed

       therapeutically supervised visitation in March 2019, but only attended one visit.

       She was discharged again after she failed to attend two scheduled visits. The

       children have not visited with Mother since March 2019.


[10]   Mother had a traumatic childhood and was placed in foster care. She has

       suffered from substance abuse and mental health issues since childhood.

       Mother was referred to therapy in this case but discharged three months later

       for lack of participation. Mother does not believe she benefits from therapy and

       “so she just stops going.” Appellant’s App. p. 20.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 4 of 16
[11]   After the trial home visit with the children ended in October 2018, Mother was

       admitted to Sycamore Springs mental health facility for two weeks. She was

       diagnosed with bipolar disorder and borderline personality disorder in addition

       to depression and anxiety. Mother was readmitted three days after her release

       for suicidal ideation. She was admitted to the facility three additional times in

       2019. Mother was provided with a second referral for therapy in February 2019,

       but she was discharged one month later for lack of participation. Mother also

       does not take medications as prescribed.


[12]   In October 2018, Mother tested positive for morphine. In March 2019, she

       tested positive for fentanyl. Mother’s other random drug screens were negative

       for the presence of illegal substances, but Mother failed to submit to all

       requested drug screens.


[13]   Throughout these proceedings, Mother did not make any progress toward

       maintaining employment. And she admitted she is unable to so do. Id. During

       the CHINS case, Mother’s great grandparents paid the rent for her home.

       However, they ceased paying her rent in October 2018, and Mother was evicted

       in December 2018. Mother was incarcerated from December 6, 2018 to January

       24, 2019.


[14]   On February 21, 2019, DCS filed a petition to terminate Mother’s parental

       rights to the children. Shortly after the petition was filed, DCS discovered that

       Mother was associating with men who had serious criminal records. Mother

       had bruises and sores on her body in April 2019. Mother reported that she was


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 5 of 16
       “selling herself for money” and living in a “trap house.” Appellant’s App. p.

       22; Ex. Vol. 3, p. 148.


[15]   In May 2019, Mother was homeless and involved in a relationship with a man

       who was incarcerated for a drug offense. Mother was pregnant with his child.

       Mother had also violated probation, and there were two outstanding warrants

       for her arrest. Mother fled from Tippecanoe County to avoid arrest. She turned

       herself in to authorities nine days before the fact-finding hearing was held in

       this case.


[16]   The fact-finding hearing was held on May 15, 2019. At the hearing, Mother

       admitted that she was not in a position to be able to care for her children. Tr. p.

       190. But she did not want her parental rights terminated. The family case

       manager and court-appointed special advocate (“CASA”) testified that

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

       162, 180. On July 23, 2019, the trial court entered its order terminating

       Mother’s parental rights to S.W. and B.W. Mother now appeals.


                                           Standard of Review
[17]   Indiana appellate courts have long had a highly deferential standard of review

       in cases involving the termination of parental rights. In re D.B., 942 N.E.2d 867,

       871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor assess witness

       credibility. Id. We consider only the evidence and reasonable inferences

       favorable to the trial court’s judgment. Id. In deference to the trial court’s

       unique position to assess the evidence, we will set aside a judgment terminating

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 6 of 16
       a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

       which leaves us with a definite and firm conviction that a mistake has been

       made. J.M. v. Marion Cty. Off. of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.

       App. 2004), trans. denied.


[18]   Mother does not challenge any of the trial court’s factual findings as being

       clearly erroneous. We therefore accept the trial court’s findings as true and

       determine only whether these unchallenged findings are sufficient to support

       the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans.

       denied; see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct.

       App. 2012) (holding that when the trial court’s unchallenged findings support

       termination, there is no error), trans. denied.


                                      I. Clear and Convincing Evidence

[19]   Mother claims that the trial court’s order involuntarily terminating her parental

       rights is not supported by clear and convincing evidence. Indiana Code section

       31-35-2-4(b)(2) provides that a petition to terminate parental rights must allege:


               (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.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 7 of 16
                        (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.

[20]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana

       Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is

       required to find that only one prong of subsection 4(b)(2)(B) has been

       established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220

       (Ind. Ct. App. 2010).


[21]   Clear and convincing evidence need not establish that the continued custody of

       the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.

       Off. of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient

       to show by clear and convincing evidence that the child’s emotional and

       physical development are put at risk by the parent’s custody. Id. If the court

       finds the allegations in a petition are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a).


[22]   The purpose of terminating parental rights is not to punish parents but instead

       to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

       Although parental rights have a constitutional dimension, the law allows for

       their termination when the parties are unable or unwilling to meet their

       responsibilities as parents. Id. Indeed, parental interests must be subordinated to


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 8 of 16
       the child’s interests in determining the proper disposition of a petition to

       terminate parental rights. In re G.Y., 904 N.E.2d at 1259.


[23]   Mother argues that the trial court clearly erred by concluding that there was a

       reasonable probability that the conditions that resulted in the children’s removal

       from her care, or the reasons for their continued placement outside her home,

       would not be remedied. When considering whether DCS has proven this factor

       by clear and convincing evidence, the trial court must determine a parent’s

       fitness to care for the child at the time of the termination hearing while also

       taking into consideration evidence of changed circumstances. A.D.S. v. Ind.

       Dep’t of Child Servs., 987 N.E.2d 1150, 1156–57 (Ind. Ct. App. 2013), trans.

       denied. The trial court may disregard efforts made only shortly before

       termination and give more weight to a parent’s history of conduct prior to those

       efforts. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013).


[24]   The trial court concluded that Mother has not “demonstrated the ability or

       willingness to make lasting changes from past behaviors” and “[t]here is no

       reasonable probability that [Mother] will be able to maintain stability to care

       and provide for SW and BW.” Appellant’s App. p. 23. The children were

       removed from Mother’s care due to her substance abuse. And the children were

       removed from the temporary trial home visit because Mother allowed

       unauthorized individuals into her home, which caused safety concerns for the

       children particularly given Mother’s dishonesty with service providers. Mother

       had two positive drug tests and refused to submit to additional drug screens

       when they were requested. Although Mother participated in therapy, substance

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 9 of 16
       abuse treatment, and domestic violence victim’s treatment, she did not

       successfully complete all of the referrals. Mother lacked a stable home for the

       last three months of these proceedings and admitted at the fact-finding hearing

       that she did not have a present ability to care for her children. Mother admitted

       to selling herself for money. She also fled the Lafayette area prior to the fact-

       finding hearing because there were two active warrants for her arrest. And she

       was involved in a romantic relationship with a man who was incarcerated on

       drug charges.


[25]   Mother has not addressed her substance abuse and mental health issues and

       admits that she does not have the ability to provide a stable home for her

       children. For all of these reasons, we conclude that clear and convincing

       evidence supports the trial court’s determination that there is a reasonable

       probability that the conditions that resulted in the children’s removal from

       Mother’s care, or the reasons for their continued placement outside her home,

       would not be remedied.2


[26]   Mother also argues that the trial court clearly erred in concluding that

       termination of her parental rights was in the children’s best interests. In

       determining what is in the best interests of a child, the trial court must look

       beyond the factors identified by DCS and look to the totality of the evidence.



       2
        Because Indiana Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, we decline to address
       Mother’s additional claim that DCS failed to prove that continuation of the parent-child relationship
       threatens the children’s well-being. In re A.K., 924 N.E.2d at 220.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020                Page 10 of 16
       A.D.S., 987 N.E.2d at 1158. In so doing, the trial court must subordinate the

       interests of the parent to those of the child and need not wait until the child is

       irreversibly harmed before terminating the parent-child relationship. Id.

       Moreover, a recommendation by the case manager or a child advocate is

       sufficient to show by clear and convincing evidence that termination is in the

       child’s best interests. Id. at 1158–59.


[27]   Mother argues that termination of her parental rights is not in the children’s

       best interests because they share a strong bond. Mother loves her children, and

       during supervised visitations, Mother’s interaction with the children was

       appropriate.


[28]   But Mother has only demonstrated that she is able to sustain a safe and

       appropriate environment for her children for a short period of time. Mother’s

       instability is also reflected in the fact that after the trial home visit ended,

       Mother did not consistently participate in visitation with the children. The

       children need stability that Mother admittedly cannot provide. Finally, both the

       family case manager and CASA testified that termination of Mother’s parental

       rights was in the children’s best interests. Tr. pp. 162, 180. For all of these

       reasons, we conclude that the trial court’s finding that termination of Mother’s

       parental rights is in the children’s best interests is supported by clear and

       convincing evidence.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 11 of 16
                                                     II. Due Process

[29]   Mother also argues that her due process rights were violated throughout these

       proceedings.3 When the State seeks to terminate parental rights, “it must do so

       in a manner that meets the requirements of due process.” J.K. v. Marion Cty.

       Dep’t of Child Servs., 30 N.E.3d 695, 699 (Ind. 2015) (quotations and citations

       omitted). Whether due process has been afforded in termination proceedings is

       determined by balancing the “three distinct factors” specified in Mathews v.

       Eldridge, 424 U.S. 319, 335 (1976): the private interests affected by the

       proceeding; the risk of error created by the State’s chosen procedure; and the

       countervailing governmental interest supporting use of the challenged

       procedure. A.P. v. Porter Cty. Off. of Family & Children, 734 N.E.2d 1107, 1112

       (Ind. Ct. App. 2000), trans. denied.


                The private interest affected by the proceeding is substantial—a
                parent’s interest in the care, custody, and control of his or her
                child. And the State’s interest in protecting the welfare of a child
                is also substantial. Because the State and the parent have
                substantial interests affected by the proceeding, we focus on the
                risk of error created by DCS’s actions and the trial court’s
                actions.




       3
         Mother does not state whether her due process claim is pursuant to the federal or state constitution—or
       both. Regardless, the due process analysis under each constitution is the same. In re D.H., 119 N.E.3d 578,
       586 n.16 (Ind. Ct. App. 2019) (citing Cooper v. State, 760 N.E.2d 660, 666 (Ind. Ct. App. 2001), trans. denied),
       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020                   Page 12 of 16
       S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013)

       (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)).


[30]   DCS must “make reasonable efforts to preserve and reunify families.” Ind.

       Code § 31-34-21-5.5(b). And, “due process protections at all stages of CHINS

       proceedings are vital because every CHINS proceeding has the potential to

       interfere with the rights of parents in the upbringing of their children.” In re

       G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (quotations and citations omitted).

       “[T]hese two proceedings—CHINS and TPR—are deeply and obviously

       intertwined to the extent that an error in the former may flow into and infect

       the latter[.]” Id.


[31]   But the “failure to provide services does not serve as a basis on which to directly

       attack a termination order as contrary to law.” In re H.L., 915 N.E.2d 145, 148

       n.3 (Ind. Ct. App. 2009); see also In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App.

       2000) (“[T]he provision of family services is not a requisite element of our

       parental rights termination statute, and thus, even a complete failure to provide

       services would not serve to negate a necessary element of the termination

       statute and require reversal.”). Furthermore, a parent may not sit idly by

       without asserting a need or desire for services and then successfully argue that

       she was denied services to assist her with her parenting. In re B.D.J., 728 N.E.2d

       195, 201 (Ind. Ct. App. 2000).


[32]   First, Mother argues that her rights were violated because “DCS failed [to]

       make a new referral for intensive therapy after [M]other was discharged in June


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 13 of 16
       2018” contrary to the trial court’s order to DCS to “make a referral, or help

       Mother enroll in, individual counseling to address domestic violence issues and

       decision making.” Appellant’s Br. at 28 (citing Ex. Vol., 1, p. 86). Next, Mother

       notes that DCS never made a referral for couples therapy or a psychological

       evaluation. Finally, Mother claims that when she began to struggle in August

       and September 2018, DCS “failed to look at the reasons why Mother was

       struggling and failed to adjust the services appropriately.” Id. at 29.


[33]   During the CHINS proceedings, Mother participated in therapy, completed

       mental health and substance abuse assessments, completed a domestic violence

       victim class, submitted to random drug screens, participated in home-based case

       management, and had supervised visitation with the children. As a result of

       Mother’s participation in services and visitation, the children were returned to

       her care for a temporary trial home visit. But when the children were returned

       to her home, Mother’s participation in services became less consistent. She

       stopped going to therapy and would either cancel the appointment or fail to

       attend without notice.


[34]   In October 2018, the children were removed from Mother’s care because she

       allowed unauthorized persons into her home causing concern for the children’s

       safety and was dishonest with service providers. Shortly before the children

       were removed, Mother was referred for therapy at Counseling Partners, but

       Mother did not participate in therapy or complete the referral. DCS also

       recommended that Mother complete a new mental health assessment, but

       Mother declined to do so. DCS re-enrolled Mother in a domestic violence class

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 14 of 16
       due to evidence of abuse in August and September 2018. The provider

       contacted Mother, but Mother did not follow up with the provider. Mother was

       incarcerated on December 6, 2018. She was released shortly before DCS filed

       the petition to terminate her parental rights in February 2019.


[35]   Mother failed to participate in and benefit from the services provided and

       complains that she should have been offered more services. DCS offered

       Mother sufficient services in its attempt to preserve and reunify Mother’s

       family. Mother has not established that DCS engaged in conduct that affected

       Mother’s ability to participate in and complete services aimed at reunifying her

       with her children. Cf. In re C.M.S.T., 111 N.E.3d 207, 213 (Ind. Ct. App. 2018)

       (holding that “the chaotic and unprofessional handling” of a CHINS case

       violated the parents’ due process rights, requiring reversal of the termination

       order); A.P., 734 N.E.2d at 1117 (finding parents’ due process rights were

       violated in a termination action where DCS made multiple procedural errors,

       such as failing to provide parents with copies of case plans and filing CHINS

       and termination petitions that did not meet statutory requirements). For all of

       these reasons, Mother has not established that her due process rights were

       violated.


                                                  Conclusion
[36]   Clear and convincing evidence supports the trial court’s order involuntarily

       terminating Mother’s parental rights to her children. And Mother has not

       established that her due process rights were violated in the termination and

       underlying CHINS proceedings.
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 15 of 16
[37]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020   Page 16 of 16
