MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Oct 04 2017, 10:19 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cynthia Phillips Smith                                    Curtis T. Hill, Jr.
Law Office of Cynthia P. Smith                            Attorney General of Indiana
Lafayette, Indiana
                                                          James D. Boyer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
      COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          October 4, 2017
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of A.S.P. (Minor                             79A04-1705-JT-989
Child)                                                    Appeal from the Tippecanoe
        and                                               Superior Court
                                                          The Honorable Faith A. Graham,
T.P. (Mother),                                            Judge
Appellant-Respondent,                                     The Honorable Tricia L. Thompson,
                                                          Magistrate
        v.
                                                          Trial Court Cause No.
                                                          79D03-1606-JT-56
Indiana Department of Child
Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017            Page 1 of 13
      Crone, Judge.


                                                Case Summary
[1]   T.P. (“Mother”) appeals a trial court order terminating her parent-child

      relationship with her seven-year-old son, A.S.P.1 She raises one issue, which is

      whether the evidence is sufficient to support the termination order. We affirm.


                                   Facts and Procedural History
[2]   In 2011, one-year-old A.S.P. was removed from Mother and Father’s care on a

      report of neglect. The Department of Child Services (“DCS”) initiated

      proceedings to have the child adjudicated a child in need of services

      (“CHINS”). A.S.P. tested positive for methamphetamine and was eventually

      adjudicated a CHINS (“2011 CHINS”). Mother failed to participate in the

      ordered services, and the 2011 CHINS court ordered the case closed and

      granted sole custody to Father.


[3]   In December 2011, Mother tested positive for methamphetamine and was the

      subject of a CHINS action in another county as to A.S.P.’s three older half

      siblings. She completed treatment, and the case was eventually closed.


[4]   In April 2014, A.S.P. was residing with Mother and his half siblings while

      Father sought housing and employment. DCS removed the children from

      Mother after receiving a report concerning Mother’s illegal drug use and child



      1
        The termination order also terminated the parental rights of A.S.P.’s father, S.P. (“Father”). Father is not
      participating in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017              Page 2 of 13
      neglect, i.e., children were dirty and chronically tardy for school. A.S.P. tested

      positive for methamphetamine, and Mother tested positive for marijuana. In

      June 2014, the trial court adjudicated A.S.P. and his half siblings as CHINS

      and ordered that Mother participate in services, which included completing

      parenting and substance abuse assessments, participating in home-based case

      management, obtaining suitable and safe housing, refraining from alcohol and

      illegal drug use; submitting to random drug screens, attending visitation as

      ordered, and maintaining contact with DCS personnel and the court.


[5]   During the first several months of the CHINS pendency, Mother was cancelled

      out of most of her services due to nonparticipation. During the first quarter of

      2015, she became actively engaged in services and progressed to the point

      where A.S.P. and his half siblings were placed on a trial home visitation with

      Mother, who was residing at her mother’s home. Within five months, the trial

      home visitation was closed due to Mother’s failure to maintain the home in a

      safe and sanitary condition, failure both to attend her own service appointments

      and to ensure that A.S.P. attended his service appointments, failure to

      personally supervise the children, and her positive alcohol screen. About that

      same time, Mother’s family was evicted for nonpayment of rent, and the

      children were placed in other homes. Mother eventually secured an apartment,

      and DCS personnel attempted to resume services. Mother did not maintain

      contact with DCS, and her referral for home-based services was eventually

      cancelled for noncompliance. During 2016, she failed to appear for several

      weekly drug screens as ordered.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017   Page 3 of 13
[6]   In June 2016, DCS filed a petition for termination of Mother’s parental rights. 2

      Following a factfinding hearing, the trial court issued an order with findings of

      fact and conclusions thereon, terminating Mother’s parent-child relationship

      with A.S.P.


[7]   Mother now appeals. Additional facts will be provided as necessary.


                                          Discussion and Decision
[8]   Mother challenges the sufficiency of the evidence to support the trial court’s

      judgment terminating her parental relationship with A.S.P. When reviewing a

      trial court’s findings of fact and conclusions thereon in a case involving the

      termination of parental rights, we first determine whether the evidence supports

      the findings and then whether the findings support the judgment. In re E.M., 4

      N.E.3d 636, 642 (Ind. 2014). We will set aside the trial court’s judgment only if

      it is clearly erroneous. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d

      143, 147 (Ind. 2005). We neither reweigh evidence nor judge witness

      credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the evidence and

      inferences most favorable to the judgment. Id. “[I]t is not enough that the

      evidence might support some other conclusion, but it must positively require

      the conclusion contended for by the appellant before there is a basis for

      reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).


[9]   In Bester, our supreme court stated,



      2
          Mother signed consents for adoption of A.S.P.’s three half siblings, and they are not subjects of this appeal.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017                Page 4 of 13
               The Fourteenth Amendment to the United States Constitution
               protects the traditional right of parents to establish a home and
               raise their children. A parent’s interest in the care, custody, and
               control of his or her children is perhaps the oldest of the
               fundamental liberty interests. Indeed the parent-child
               relationship is one of the most valued relationships in our culture.
               We recognize of course that parental interests are not absolute
               and must be subordinated to the child’s interests in determining
               the proper disposition of a petition to terminate parental rights.
               Thus, parental rights may be terminated when the parents are
               unable or unwilling to meet their parental responsibilities.


       839 N.E.2d at 147 (citations, quotation marks, and alteration omitted).


[10]   To obtain a termination of a parent-child relationship, DCS is required to

       establish in pertinent part:


               (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.


               ….


                (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.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017   Page 5 of 13
                        (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).


[11]   In recognition of the seriousness with which we address parental termination

       cases, Indiana has adopted a clear and convincing evidence standard. Ind.

       Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367,

       377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need

       not reveal that the continued custody of the parents is wholly inadequate for the

       child’s survival. 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.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.

       2013) (citation omitted).




       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017   Page 6 of 13
             Section 1 – Mother has failed to demonstrate clear error
           concerning the reasonable probability that the conditions that
                  led to A.S.P.’s removal will not be remedied.
[12]   Mother asserts that the evidence is insufficient to support the trial court’s

       conclusion that a reasonable probability exists that the conditions that led to

       A.S.P.’s removal will not be remedied.3 Where, as here, Mother does not

       specifically challenge any of the trial court’s findings, we simply determine

       whether the unchallenged findings are sufficient to support the judgment. T.B.

       v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans.

       denied. When assessing whether there is a reasonable probability that

       conditions that led to a child’s removal will not be remedied, we must consider

       not only the initial basis for the child’s removal but also the bases for continued

       placement outside the home. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App.

       2005), trans. denied. Moreover, “the trial court should judge a parent’s fitness to

       care for his [or her] children at the time of the termination hearing, taking into

       consideration evidence of changed conditions.” In re J.T., 742 N.E.2d 509, 512

       (Ind. Ct. App. 2001), trans. denied. “Due to the permanent effect of termination,


       3
         Mother also challenges the trial court’s conclusion that there is a reasonable probability that the
       continuation of the parent-child relationship poses a threat to A.S.P.’s well-being. Indiana Code Section 31-
       35-2-4(b)(2)(B) requires DCS to prove only one of the three circumstances listed. Because we find no error
       concerning the reasonable probability that the conditions will not be remedied, we need not address the threat
       to the child’s well-being. We note that the termination statute was amended in 2010 to include the following
       alternative to unremedied circumstances and threat to well-being: “The child has, on two (2) separate
       occasions, been adjudicated a child in need of services.” Ind. Code § 31-35-2-4(b)(2)(B)(iii). This is
       significant because A.S.P. was adjudicated a CHINS in a separate proceeding in 2011. The trial court
       entered findings on A.S.P.’s previous CHINS adjudication but does not appear to have relied on it as the
       basis for its termination order. See Appellant’s App. Vol. 2 at 10, 14 (findings 2 and 35, conclusions 1-4). We
       observe that Mother has quoted the pre-2010 version of the statute in her brief and remind her to include the
       version of the statute in effect when the termination petition was filed.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017             Page 7 of 13
       the trial court also must evaluate the parent’s habitual patterns of conduct to

       determine the probability of future neglect or deprivation of the child.” Id. In

       making its case, “DCS need not rule out all possibilities of change; rather, [it]

       need establish only that there is a reasonable probability that the parent’s

       behavior will not change.” In re Kay.L., 867 N.E.2d 236, 242 (Ind. Ct. App.

       2007). The court may properly consider evidence of a parent’s substance abuse,

       criminal history, lack of employment or adequate housing, history of neglect,

       and failure to provide support. McBride v. Monroe Cty. Office of Family & Children,

       798 N.E.2d 185, 199 (Ind. Ct. App. 2003).


[13]   Mother asserts that she is currently stable and has essentially remedied the

       conditions that led to A.S.P.’s initial removal. Those conditions include

       neglect, Mother’s methamphetamine use, unsanitary living conditions, A.S.P.’s

       positive test positive for methamphetamine, and Mother’s positive test for

       marijuana. In its dispositional order following the CHINS adjudication, the

       trial court ordered that Mother secure and maintain employment and safe,

       stable housing and that she participate in parenting and substance abuse

       assessments, home-based case management, visitation, and drug screens.


[14]   In its termination order, the trial court issued extensive findings concerning

       Mother’s patterns of conduct that bear negatively on the reasonable probability

       of her remedying the conditions that led to A.S.P.’s removal. To summarize,

       Mother completed a substance abuse assessment and clinical interview but did

       not complete a parenting assessment. She participated in therapy early in the

       CHINS proceedings but ceased participation by the summer of 2016. She was

       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017   Page 8 of 13
       discharged from several home-based management providers for noncompliance.

       She made strides in her visitation and was afforded a trial home visitation,

       which lasted about five months and was ultimately closed due to unsafe,

       unsanitary living conditions at Mother’s home and Mother’s persistent reliance

       on her own mother as the children’s primary caregiver. Thereafter, her

       participation in services was minimal, and she failed to stay in contact with

       DCS as ordered. She was employed during most of the CHINS proceedings,

       initially bouncing from job to job (four different jobs in the first six months), but

       having a couple longer stints of employment.


[15]   As for housing, the trial court found that Mother maintained housing for most

       of the pendency of the CHINS case, initially living in her mother’s home and

       then moving to an apartment with her boyfriend. When her boyfriend was

       incarcerated, she moved back in with her mother. They were several thousand

       dollars in arrears on rent; utilities were twice disconnected for nonpayment; and

       conditions such as bedbugs, lice, broken plumbing, and trash strewn throughout

       the house resulted in the closure of the trial home visitation with A.S.P. and his

       half siblings. DCS family case manager Dellie Wells reported that during the

       time when the children were at Mother’s house, there was a broken window

       that was left unrepaired and uncovered. Tr. Vol. 2 at 73. The family was

       evicted, and Mother moved into her own apartment, which DCS personnel

       observed to be so cluttered with boxes and clothes as to make it difficult to walk

       around. Mother lived in the apartment for a year but faced possible eviction

       twice due to unpaid rent. The court found that despite her living conditions


       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017   Page 9 of 13
       and unpaid bills, Mother spent money on unnecessary items such as tanning

       and brand-name shoes and failed to avail herself of community resources such

       as food pantries.


[16]   Mother’s history of drug use includes a felony conviction for possession of

       methamphetamine as well as a conviction for operating while intoxicated. She

       failed several drug screens in the first six months of the CHINS proceedings and

       failed to appear for several other screens. Wells testified concerning an incident

       in which she came to Mother’s house for a random drug screen, and Mother

       tested positive for alcohol (.08 percent blood alcohol concentration)

       immediately after having driven home from the hardware store. Id. at 74.4

       Mother went a few months with clean drug screens, followed by positive

       screens for marijuana in the summer and fall of 2016, after the permanency plan

       had been changed from reunification to termination and adoption.


[17]   In examining the evidence and unchallenged findings, we find it sad and

       troubling that A.S.P.’s behavior regressed during his trial home visitation with

       Mother. As part of the trial home visitation, Mother was required to

       immediately engage in therapy services for A.S.P., but Wells explained that

       Mother’s attendance at those sessions was sporadic and that, when Mother did

       attend the sessions, she was impatient with A.S.P. Id. at 72. Wells testified that

       after the trial home visitation had failed, Mother maintained weekly visits but



       4
         At one point during the CHINS pendency, Mother’s driver’s license was suspended for one year for driving
       without insurance, and at the time of the termination factfinding, she said that she would not seek to have it
       reinstated due to lack of funds.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017           Page 10 of 13
       was often disengaged and frustrated during those visits. Id. at 93. Wells also

       reported that when A.S.P. was placed in foster care, Mother made no effort to

       communicate with A.S.P. by phone even though she was afforded the privilege

       of doing so. Id. at 92. In short, despite some strides in her employment,

       Mother has failed to demonstrate significant, sustained improvement in other

       areas. In fact, when it comes to her participation in services, she has regressed.

       The evidence and unchallenged findings are sufficient to support the trial

       court’s conclusion that there is a reasonable probability that the conditions that

       led to A.S.P.’s removal will not be remedied.


               Section 2 – Mother has failed to establish clear error
                        concerning A.S.P.’s best interests.
[18]   Mother asserts that the trial court clearly erred in concluding that termination is

       in A.S.P.’s best interests. Although not dispositive, permanency and stability

       are key considerations in determining the best interests of a child. In re G.Y.,

       904 N.E.2d 1257, 1265 (Ind. 2009). A determination of a child’s best interests

       should be based on the totality of the circumstances. In re A.P., 981 N.E.2d 75,

       84 (Ind. Ct. App. 2012).


[19]   The trial court’s findings with respect to A.S.P.’s best interests include the

       following:


               33. The child has been diagnosed with Reactive Attachment
               Disorder, Adjustment Disorder, and Disruptive Behavior. The
               child participated in therapy and home-based life skills training.
               The plan for the child is adoption by the concurrent (sic) foster
               home. The child is doing well in the foster home which provides

       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017   Page 11 of 13
               a stable environment and ensures the child’s needs are met.

               34. CASA, Shaeley Schmidt, supports the plan of adoption for
               the child. CASA notes the child has behavioral, educational, and
               mental health issues. The child needs a caregiver who is stable
               and can manage the child’s challenges. CASA notes that Mother
               has not demonstrated an ability to provide for the child’s needs.
               The Father has essentially abandoned the child.

               35. The child has been adjudicated a CHINS on two (2) separate
               occasions and tested positive for methamphetamine in both
               cases. The child has suffered from instability during his young
               life and needs a stable, permanent home. The child has been in
               approximately five (5) foster homes throughout the course of
               both CHINS cases. This child has spent the majority of his life in
               a CHINS case and needs permanency now. To continue the
               parent-child relationships would be detrimental to the child.


       Appellant’s App. Vol. 2 at 14.


[20]   Here, the totality of the circumstances shows a child with significant challenges,

       many of which can be traced to the lack of stable, consistent care throughout his

       young life. He has been bounced from home to home, having been in and out

       of his parents’ care, in relative care, and in several foster homes. Mother,

       though seemingly well-meaning, struggles with significant challenges of her

       own. Her inability to stay away from drugs for any prolonged period has

       resulted in her unstable and unsanitary living conditions, which in turn, have

       negatively affected A.S.P.’s behavior as well as his mental stability and physical

       health and safety. A.S.P. has twice been adjudicated a CHINS, and in both

       instances, this young child tested positive for illegal drugs. He is now at a point


       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017   Page 12 of 13
       where his mental, emotional, and educational needs require additional care and

       consistency that Mother simply cannot provide. CASA Schmidt concluded,

       and the trial court agreed, that termination of Mother’s parental rights and

       adoption by the current foster parents are in A.S.P.’s best interests. “[T]he

       testimony of the service providers may support a finding that termination is in

       the child’s best interests.” In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010),

       trans. dismissed. The totality of the circumstances supports the trial court’s

       conclusion that termination is in A.S.P.’s best interests.


[21]   Mother has failed to establish clear error in the trial court’s decision to

       terminate her parent-child relationship with A.S.P. Consequently, we affirm.


[22]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017   Page 13 of 13
