                                                                        FILED
                                                                    Mar 06 2019, 9:21 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
L.M. (MOTHER)                                              Curtis T. Hill, Jr.
Benjamin J. Church                                         Attorney General of Indiana
Church Law Office                                          Natalie F. Weiss
Monticello, Indiana                                        Deputy Attorney General
ATTORNEY FOR APPELLANT                                     Indianapolis, Indiana
SA.S. (FATHER)
Christopher P. Phillips
Phillips Law Office, P.C.
Monticello, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                          March 6, 2019
Child Relationship of:                                     Court of Appeals Case No.
                                                           18A-JT-2370
S.S. (Minor Child)
                                                           Appeal from the White Circuit
and                                                        Court
L.M. (Mother) and Sa.S. (Father),                          The Honorable Robert W.
Appellants-Respondents,                                    Thacker, Judge
                                                           Trial Court Cause No.
        v.                                                 91C01-1712-JT-30


The Indiana Department of
Child Services,
Appellee-Petitioner.



Robb, Judge.



Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019                           Page 1 of 15
                                     Case Summary and Issue
[1]   L.M. (“Mother”) and Sa.S. (“Father”) (collectively “Parents”) separately

      appeal the juvenile court’s judgment terminating their parental rights to S.S.

      (“Child”). Parents present several issues for our review which we consolidate

      and restate as: whether the juvenile court erred in terminating their parental

      rights. Concluding the juvenile court did not err in terminating either Mother’s

      or Father’s parental rights, we affirm.



                                 Facts and Procedural History
[2]   Mother and Father are the biological parents of Child who was born on June

      30, 2013.1 Child tested positive for THC at birth and the Indiana Department

      of Child Services (“DCS”) conducted an informal adjustment and then a child

      in need of services (“CHINS”) case before reunifying Child with Father.


[3]   On May 16, 2016, DCS received a report that Parents were neglecting Child

      and using illegal drugs in his presence. After Parents were contacted by DCS,

      Mother refused a drug screen and Father tested positive for methamphetamine,

      amphetamine, and THC. Parents fled with Child to Florida, but Father

      eventually returned with Child on May 27 and Child was removed from his




      1
          Paternity was established in a prior legal action.


      Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019        Page 2 of 15
      care. Child was placed in relative care with paternal grandfather where Child

      remained throughout the duration of this case.


[4]   DCS filed its CHINS petition on June 1, 2016 based on Parents’ drug use in the

      presence of the Child, Mother’s refusal to take a drug screen, Father’s positive

      drug test, Parents’ decision to flee to Florida, and Parents’ prior involvement

      with DCS. The juvenile court conducted a detention hearing on June 2 at

      which only Father appeared and the juvenile court authorized Child’s

      continued removal and placement in relative care. Due to Father being on

      probation when he fled to Florida, he was incarcerated from June to August

      2016 for violating the terms of his probation.


[5]   Following a factfinding hearing, the juvenile court adjudicated Child to be

      CHINS on September 28, 2016. The juvenile court ordered Parents to, among

      other things: maintain contact with DCS; maintain suitable, safe, and stable

      housing; maintain a stable source of income; not use, consume, trade or sell any

      illegal controlled substances; obey the law; submit to random drug screens;

      attend all scheduled visitations with the Child; engage in home based case

      management; and complete a substance abuse assessment and all treatment

      recommendations therefrom. Appellant’s [Mother’s] Appendix, Volume II 19-

      23.


[6]   After Parents failed to comply with many of the terms ordered by the juvenile

      court, DCS filed a verified petition for the termination of the parent-child

      relationship (“TPR”) between Father, Mother, and Child on December 28,


      Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019        Page 3 of 15
      2017. Following a TPR hearing on June 13 and June 18, 2018, the juvenile

      court issued its termination order on September 4, which included 160 findings

      of fact2 and concluding DCS had met the statutory requirements for terminating

      the parent-child relationships. See id. at 65-66. Father and Mother now

      separately appeal. Additional facts will be supplied as necessary.



                                   Discussion and Decision
                                        I. Standard of Review
[7]   We begin, as we often do, by emphasizing that the right of parents to establish a

      home and raise their children is protected by the Fourteenth Amendment to the

      United States Constitution. In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App.

      2004), trans. denied. The law provides for the termination of these

      constitutionally protected rights, however, when parents are unable or

      unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144,

      149 (Ind. Ct. App. 2008). We subordinate the interests of the parents to those




      2
        While we commend the juvenile court for its extensive findings and thorough order, we note that many of
      the juvenile court’s findings are merely recitations of the evidence. See Appellant’s App., Vol. II at 45-65. “A
      court or an administrative agency does not find something to be a fact by merely reciting that a witness
      testified to X, Y, or Z.” S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114, 1122 (Ind. Ct. App. 2013).
      Instead, “a finding of fact must indicate not what someone said is true but what is determined to be true, for
      that is the trier of fact’s duty.” Id. “The trier of fact must adopt the testimony of the witness before the
      ‘finding’ may be considered a finding of fact.” Id. Because neither Father nor Mother has challenged these
      findings on appeal, however, any such argument has been waived. McMaster v. McMaster, 681 N.E.2d 744,
      747 (Ind. Ct. App. 1997) (explaining that unchallenged trial court findings were accepted as true).
      Regardless, we take this opportunity to remind trial courts that they must adopt evidence or testimony if the
      court wishes to make such a finding.

      Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019                                  Page 4 of 15
       of the child when evaluating the circumstances surrounding a termination. In re

       K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001).


[8]    We do not reweigh the evidence or judge the credibility of witnesses when

       reviewing the termination of parental rights. In re D.D., 804 N.E.2d at 265.

       Rather, we consider only the evidence and reasonable inferences most favorable

       to the judgment. Id. Furthermore, in deference to the juvenile court’s unique

       position to assess the evidence, we only set aside its judgment terminating a

       parent-child relationship when it is clearly erroneous. In re L.S., 717 N.E.2d

       204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied, 534 U.S. 1161 (2002).


[9]    Where, as here, the juvenile court enters findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We must first determine

       whether the evidence supports the findings, then we must determine whether

       the findings support the judgment. Id. Findings will only be set aside if they are

       clearly erroneous and findings are only clearly erroneous “when the record

       contains no facts to support them either directly or by inference.” Yanoff v.

       Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).


                                        II. Termination Order
[10]   Our supreme court has described the involuntary termination of parental rights

       as “an extreme measure that is designed to be used as a last resort when all

       other reasonable efforts have failed.” In re C.G., 954 N.E.2d 910, 916 (Ind.



       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019         Page 5 of 15
       2011). In order for the State to terminate parental rights, Indiana Code section

       31-35-2-4(b)(2) provides the State must prove, in relevant part:


                 (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.


                 ***


                 (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.


[11]   Notably, the provisions of Indiana Code section 31-35-2-4(b)(2)(B) are written

       in the disjunctive, and thus the State need only prove one of those statutory

       elements, In re L.S., 717 N.E.2d at 209, but must do so by clear and convincing

       evidence, Ind. Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind.

       2009). If a juvenile court determines the allegations of the petition are true,

       then the court shall terminate the parent-child relationship. Ind. Code § 31-35-

       2-8(a).




       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019               Page 6 of 15
[12]   We also note that “[i]t is common practice for our trial courts to conduct

       termination hearings as well as the CHINS proceedings underlying them

       involving multiple children and/or multiple parents in a single proceeding.” In

       re V.A., 51 N.E.3d 1140, 1146 (Ind. 2016). However, we must weigh the

       evidence as it pertains to each Parent. See id.


                                      A. Remedy of Conditions
[13]   Both Mother and Father contend DCS failed to prove by clear and convincing

       evidence that the circumstances leading to removal would not be remedied.

       We engage in a two-step analysis to determine whether such conditions will be

       remedied: “First, we must ascertain what conditions led to [Child’s] placement

       and retention in foster care. Second, we determine whether there is a

       reasonable probability that those conditions will not be remedied.” In re K.T.K.,

       989 N.E.2d 1225, 1231 (Ind. 2013) (quotation omitted).


[14]   Child was removed from Parents due to ongoing substance abuse issues and

       their use of illegal drugs in front of Child. The juvenile court made 136 findings

       “relating to continued removal and reasonable probability reasons for removal

       not remedied.” Appellant’s App., Vol. II at 49. And, because neither Father

       nor Mother has challenged these findings on appeal, we must accept these

       findings as true. McMaster, 681 N.E.2d at 747.


[15]   A juvenile court assesses whether a reasonable probability exists that the

       conditions justifying a child’s removal or continued placement outside his

       parent’s care will not be remedied by judging the parent’s fitness to care for the

       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019         Page 7 of 15
       child at the time of the termination hearing, taking into consideration evidence

       of changed conditions. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Habitual

       conduct may include criminal history, drug and alcohol abuse, history of

       neglect, failure to provide support, and lack of adequate housing and

       employment, but the services offered to the parent and the parent’s response to

       those services can also be evidence demonstrating that conditions will be

       remedied. A.D.S v. Indiana Dept. of Child Services, 987 N.E.2d 1150, 1157 (Ind.

       Ct. App. 2013), trans. denied.


                                                     1. Mother

[16]   We begin our review with Mother. The record reveals that the Child tested

       positive for THC at birth and Mother has never had primary custody of the

       Child or acted as the Child’s primary caregiver. Mother resided in Florida from

       May 2016 until December 2017 and during that time Mother only had

       visitation with the Child once every three months. Mother’s oral drug screens

       were consistently positive for THC and she refused to take hair drug screens on

       multiple occasions. DCS recommended a drug treatment facility in Florida but

       Mother failed to complete the program or attend the required sessions. Mother

       moved back to Indiana in December 2017 after she became pregnant with a

       child fathered by her new boyfriend. Since her return, Mother’s visitation with

       the Child has increased to once a week and she produced several negative drug

       tests during her pregnancy. Mother requested additional visitation with the

       Child a month before the TPR hearing and completed a substance abuse

       assessment a week before the TPR hearing.

       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019       Page 8 of 15
[17]   On appeal, Mother’s sole argument is that the juvenile court erred by

       disregarding her recent progress. However, since Mother failed to specifically

       challenge any of the juvenile court’s findings, we need only consider whether

       the findings support the juvenile court’s conclusion. Bester, 839 N.E.2d at 147.

       We conclude that they do.


[18]   Substance abuse is the underlying issue in this case and Mother has failed to

       complete a substance abuse program despite being counseled to participate in

       such a program for over a year and a half. Accounting for the fact that the

       Child tested positive for THC at birth in 2013, Mother has failed to complete a

       substance abuse program for over five years and the record is also absent of any

       voluntary efforts Mother has made with the aim of improving her substance

       abuse issues.


[19]   Mother’s efforts are similarly unimpressive with regard to her relationship with

       the Child. Family Case Manager (“FCM”) Brooke Brown testified that Mother

       lacks a strong bond with the Child and that Mother disregarded her suggestions

       for improvement. Likewise, the guardian ad litem testified that Mother’s

       relationship with the Child more closely resembles a friendship than that of a

       parent and child. We have often noted that evidence of a parent’s pattern of

       unwillingness or lack of commitment to address parenting issues and to

       cooperate with services demonstrates the requisite reasonable probability that

       the conditions will not change. Lang v. Starke Cty. OFC, 861 N.E.2d 366, 372

       (Ind. Ct. App. 2007), trans. denied. Such is the case here.



       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019       Page 9 of 15
[20]   To the extent Mother highlights her recent progress and completion of a

       substance abuse assessment one week before the TPR hearing, the juvenile

       court was well within its discretion to “disregard the efforts Mother made only

       shortly before termination and to weigh more heavily Mother’s history of

       conduct prior to those efforts.” In re K.T.K., 989 N.E.2d at 1234. For these

       reasons, we conclude the juvenile court’s findings supported its conclusion. See,

       e.g., In re E.M., 4 N.E.3d at 644 (findings regarding a parent’s continued non-

       compliance with services supported juvenile court’s conclusion the conditions

       under which children were removed from the parent’s care would not be

       remedied).


                                                     2. Father

[21]   Unlike Mother, Father’s efforts were initially quite promising. After the Child’s

       removal and Father’s release from incarceration for violating his probation,

       Father engaged in home based case management and cooperated with DCS. In

       return, Father was provided additional responsibility which included picking

       the Child up from preschool and having unsupervised time with the Child

       before daycare. Father eventually began arriving late and then failed to pick the

       Child up at all. Thereafter, Father’s behavior worsened, and his cooperation

       declined.


[22]   Father repeatedly tested positive for cocaine, methamphetamine, amphetamine,

       and/or THC since the inception of this case. DCS employees observed Father

       under the influence on multiple occasions during which his behavior was

       irrational and he would appear aggressive and threatening. Father completed
       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019       Page 10 of 15
       only seven days of a 60-to-90-day inpatient treatment program and was

       eventually arrested on charges of possession of a syringe, methamphetamine,

       and marijuana in September 2017.


[23]   Like Mother, Father emphasizes his recent efforts and argues the juvenile court

       erred in concluding the relevant conditions were unlikely to be remedied

       because of his recent cooperation, the fact that he has not missed any visits with

       the Child since the beginning of 2018, his current employment, and that he was

       “capable of progress with his substance abuse, but needs to work on following

       through with the program.” Appellant’s Brief on Behalf of Father at 13. In so

       arguing, Father contends his case is akin to In re J.M., where DCS sought to

       terminate the parental rights of both the mother and father of a child after both

       were incarcerated on drug-related charges. 908 N.E.2d 191 (Ind. 2009).


[24]   In J.M., the juvenile court refused to terminate the parental rights after receiving

       testimony that both parents could be released early from prison for completing

       certain degrees, that both parents had completed a number of self-improvement

       programs while incarcerated, and that the father had secured employment and

       housing upon his release from prison. Our supreme court agreed with the

       juvenile court’s refusal to terminate because the parents’ ability to establish a

       proper household for the child could be determined within a relatively short

       period of time without threatening the child’s need for permanency.


[25]   Contrary to Father’s assertion, however, almost none of the factors considered

       by our supreme court in J.M. are applicable here. First, to the extent Father


       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019         Page 11 of 15
       contends he was employed at the time of the TPR hearing, the juvenile court

       found that he was not. See Appellant’s App., Vol. II at 60, ¶ 99. Indeed,

       Father’s own testimony at the TPR hearing established that he was

       unemployed. See Transcript, Volume 2 at 120. Second, despite the similarity

       between Father’s two arrests and the arrests of the parents in J.M., both of

       which were after their children’s birth, Father has consistently refused help with

       his substance abuse issues and has failed to take any significant steps to obtain

       sobriety—unlike the number of self-improvement programs completed in J.M.


[26]   Finally, as with Mother, the juvenile court was free to disregard Father’s

       attendance at five narcotics anonymous meetings and his month-long sobriety

       prior to the TPR hearing in favor of his long-running pattern of behavior. In re

       K.T.K., 989 N.E.2d at 1234. In short, we agree with the juvenile court that the

       evidence establishes a reasonable probability that the conditions that resulted in

       the Child’s removal and continued placement outside the home will not be

       remedied.3


                                               B. Best Interests
[27]   Both Father and Mother also contend DCS failed to prove termination of their

       parental rights was in the Child’s best interest. In determining the best interests



       3
         Father also argues the juvenile court erred in finding that the continuation of the parent-child relationship
       poses a threat to the Child’s well-being. However, as noted above, Indiana Code section 31-35-2-4(b)(2)(B) is
       written in the disjunctive and requires only one element be proven to terminate Father’s parental rights. See
       In re L.S., 717 N.E.2d at 209. Having concluded the evidence is sufficient to show a reasonable probability
       the conditions resulting in the Child’s removal will not be remedied, we need not consider whether the
       parent-child relationship poses a threat to the Child’s well-being.

       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019                                Page 12 of 15
       of a child, the juvenile court must “look beyond the factors identified by the

       DCS and look to the totality of the evidence.” In re H.L., 915 N.E.2d 145, 149

       (Ind. Ct. App. 2009). And the juvenile court “need not wait until the child is

       irreversibly harmed such that the child’s physical, mental and social

       development is permanently impaired before terminating the parent-child

       relationship.” In re K.T.K., 989 N.E.2d at 1235.


[28]   Once again, neither Father nor Mother has challenged any of the juvenile

       court’s findings of fact and therefore, we need only determine whether those

       findings support the juvenile court’s conclusion. Bester, 839 N.E.2d at 147. In

       this regard, the juvenile court found:


               1.       [FCM] Brown testified that the termination was in the
                        [C]hild’s best interest in that the Father continues to
                        struggle with housing and income stability, poor decision
                        making, illegal substance use which produces erratic,
                        irrational behavior, and that Mother chose to live in
                        Florida instead of Indiana to build a bond with [the Child],
                        that throughout the case Mother only visited [the Child]
                        when she was home for Court, and consistently tested
                        positive for THC until she became pregnant while home
                        for Court. Since Mother’s return [to Indiana] in December
                        of 2017 she did not request additional visitation until May
                        of 2018.


               2.       [FCM] Brown testified that the relationship between the
                        [C]hild and Mother was more of a friend relationship than
                        a Mother-[child] relationship. This relationship has been
                        only minimally enhanced since Mother’s return in
                        December.



       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019          Page 13 of 15
               3.       [FCM] Brown testified that the [C]hild needs consistency
                        in her everyday life, and permanency and had been placed
                        with her grandfather a majority of her life.


               4.       [The guardian ad litem] testified that the [C]hild needs
                        stable parents and consistency.


               5.       [The guardian ad litem] testified that the [C]hild has been
                        with [the same] placement for over half her life and
                        bonded with paternal grandfather and his significant other.


       Appellant’s App., Vol. II at 64.


[29]   We conclude that the juvenile court’s findings support its judgment. As

       discussed above, DCS produced ample evidence that the conditions resulting in

       removal will not be remedied. This, combined with FCM Brown’s testimony

       that termination was in the Child’s best interest, is sufficient to show

       termination is in the child’s best interest by clear and convincing evidence. See,

       e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (holding

       recommendations of the case manager, court-appointed advocate, and evidence

       tending to show that the conditions resulting in removal will not be remedied is

       enough to show termination is in the child’s best interests by clear and

       convincing evidence), trans. denied. Neither parent has demonstrated an ability

       to effectively use the services provided to them, see In re T.F., 743 N.E.2d 766,

       776 (Ind. Ct. App. 2001), trans. denied, and it is uncontested that Child is doing

       well in foster placement with her paternal grandfather. Accordingly, the

       juvenile court did not err in its determination of the Child’s best interests.


       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019           Page 14 of 15
                                                Conclusion
[30]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). Finding no such error here, we affirm the juvenile court.


[31]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019      Page 15 of 15
