MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Aug 30 2019, 8:34 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        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
Jeffrey S. Arnold                                         Curtis T. Hill, Jr.
Columbia City, Indiana                                    Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          August 30, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          19A-JT-687
K.B. (Minor Child)                                        Appeal from the Whitley Circuit
                                                          Court
and
                                                          The Honorable Matthew J.
K.Y. (Mother),                                            Rentschler, Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          92C01-1809-JT-54
        v.

Indiana Department of Child

Services,

Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019                  Page 1 of 14
      Riley, Judge.


                                  STATEMENT OF THE CASE
[1]   Appellant-Respondent, K.Y. (Mother), appeals the termination of her parental

      rights to her minor child, K.B. (Child).


[2]   We affirm.


                                                        ISSUE
[3]   Mother raises one issue on appeal, which we restate as follows: Whether the

      Department of Child Services (DCS) presented clear and convincing evidence

      to support the trial court’s termination of Mother’s parental rights.


                       FACTS AND PROCEDURAL HISTORY
[4]   Mother is the mother of Child, born on September 17, 2012. Mother and Child

      initially became involved with DCS in October 2014, when Child was removed

      from Mother’s care because Mother’s roommate was manufacturing

      methamphetamine in the apartment. DCS filed a Child in Need of Services

      (CHINS) petition whereupon Child was placed with K.B., the Child’s

      biological father (Father). 1 Mother agreed to sign custody of the Child over to

      Father and the case was dismissed a few months later.




      1
       The trial court also terminated Father’s rights to his Child, but he did not appeal the decision. Facts
      pertaining to Father will be included if necessary for this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019                     Page 2 of 14
[5]   Mother and Father did not remain separated. On March 24, 2017, DCS

      received a report of a domestic altercation between Mother and Father, during

      which Mother left the residence intoxicated, and took the Child with her.

      Family Case Manager, Monica Straight (FCM Straight), visited with both

      Mother and Father. The Child was not removed at that time and DCS offered

      the family an informal adjustment whereby Mother and Father were allowed to

      retain custody of the Child under certain conditions.


[6]   In June 2017, DCS received a report of suspected drug use in Mother’s

      residence. During the investigation of the report, DCS learned that Mother had

      left Child with a caregiver for more than eighteen hours and was unable to get

      the Child because she was “with another male who was under the influence.”

      (Transcript p. 98). When Mother returned, she left the county with the Child

      and their whereabouts were unknown for two and one-half days. Eventually,

      FCM Straight located Mother and Child in Milford, Indiana, and initiated an

      unplanned visit. Confronted by FCM Straight, Mother refused to take a drug

      test, which refusal was in violation of the terms of her informal adjustment, and

      DCS detained the Child.


[7]   On June 29, 2017, DCS filed an affidavit of probable cause, alleging the Child

      to be a CHINS. That same day, the trial court conducted an emergency

      detention hearing and upheld the Child’s detention, placing him with his

      paternal grandparents. At a hearing conducted on July 31, 2017, Father

      admitted that Child was a CHINS, and Mother admitted likewise during a

      hearing on August 21, 2017. As part of the dispositional order, Child’s parents

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 3 of 14
      were required to participate in services, including, among others, maintain

      suitable, safe, and stable housing, secure and maintain employment, not

      consume alcohol or illegal substances, complete a parenting assessment and all

      recommendations therefrom, and complete substance abuse treatment. Child

      was eventually removed from his placement with paternal grandparents because

      of suspected sexual abuse by grandfather. On January 5, 2018, Child was

      placed with a foster care provider in Columbia City, Indiana.


[8]   Dawn Scott (Scott), a licensed clinical therapist, specializing in addiction,

      worked with both Mother and Father starting in May 2017. The therapy

      involved “domestic violence, relationship issues and other underlying issues.”

      (Tr. p. 25). During the approximately one year he counseled Mother, they met

      about forty times. Nevertheless, Mother was not successful as she “wasn’t

      engaging [in] treatment recommendations” and continued using drugs. (Tr. p.

      27). Mother and Father had a toxic relationship and even though they

      separated numerous times during Scott’s involvement with the parents, when

      they were together, Mother would relapse.


[9]   DCS offered home-based services to Mother and referred her for a substance

      abuse assessment, a parenting assessment, and a psychological assessment. She

      was inconsistent in complying with the services and failed to maintain contact

      with DCS. Upon DCS’s referral, Mother and Child entered into therapy

      sessions at the Villages of Indiana with therapist Jennifer Lawson. After a

      single meeting, Mother failed to attend any follow-up visits. In June of 2018,



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 4 of 14
       Mother’s visits with the Child were suspended due to Mother’s inconsistency

       with services and her failure to maintain contact with DCS.


[10]   During the course of the CHINS proceedings, Mother was mostly transient and

       resided in approximately twenty different locations: homeless shelters,

       residential treatment centers, hospitals, jails, and a car. At times, DCS

       attempted to move the services to the different places where Mother was

       located. DCS was not always successful as Mother moved often and her

       whereabouts were unknown on many occasions.


[11]   Mother resided at Noble House Ministries, a homeless shelter, domestic

       violence shelter and a recovery home on three different times. In March 2015,

       she was evicted after approximately one month for a curfew violation. In

       November 2017, Mother was evicted after two weeks because she failed to

       return after receiving a pass. In October 2018, Mother was evicted for

       intoxication.


[12]   From November 30, 2017 though March 3, 2018, Mother lived at Charis

       House, a homeless shelter for women and children. Although Mother was

       given a lot of leniency with the house rules, she was nevertheless evicted

       because she falsely asserted that she needed to go to the hospital because of a

       head injury. In April and May of 2018, Mother resided at Serenity House, a

       transitional living facility for men and women in Auburn, Indiana. She left on

       her own, and her exit was deemed unsuccessful.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 5 of 14
[13]   In early 2018, Mother was arrested for possession of methamphetamine and

       paraphernalia. She was subsequently charged with Level 6 felony nonsupport

       of a dependent. Mother entered the Noble County drug court in October 2018.

       On her first day, Mother tested positive for alcohol. During the following days,

       Mother tested positive for alcohol and Xanax. The trial court issued a warrant

       and Mother was taken into custody on October 15, 2018. She remained in jail

       until November 26, 2018.


[14]   After being placed with B.E., a foster care provider in Columbia City, Indiana,

       the Child’s behavior improved drastically. Prior to his placement, Child was

       very temperamental. He went from “a little kid who was screaming and

       running around [FCM Straight’s] office cussing and throwing a fit, to a kid who

       is learning to control his emotions.” (Tr. p. 116). He is now learning to swim

       and ride a bike, and is proud of his accomplishments. He fits in well with his

       foster family, calling his foster parents mama and papa, and acting as a sibling

       to the other children in the house. Child’s Court Appointed Special Advocate

       (CASA) David Lowe (CASA Lowe) visited the Child at his grandparents’

       residence, at school, and at his foster parents’ placement. While Child was

       initially a “wild child,” CASA Lowe has seen a complete turnaround in his

       behavior (Tr. p. 128). He is now a “loving little boy,” he fits in well with his

       classmates, and he is a “good kid all the way around.” (Tr. p. 128). After

       receiving therapy, Child now knows boundaries and is respectful of other

       people’s things. He needs stability, structure and predictability, which is offered

       by his foster parents, who intend to adopt her.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 6 of 14
[15]   DCS filed its petition for termination of Mother’s parental rights on September,

       25, 2018. On November 26, 2018, after DCS filed its termination petition,

       Mother entered Rose Home, a facility that helps women in recovery. When

       Mother first applied, she was incarcerated but after a successful interview,

       Mother was admitted. Mother only became compliant with DCS’ s services

       when she entered Rose Home at the end of November 2018. At the time of the

       termination hearing, Mother was on home detention with an ankle monitor

       because of a drug related conviction. She was still on probation for her drug

       case and faced a felony non-support of dependent charge. At the hearing, FCM

       Straight opined that returning the Child to Mother would be a regression, and

       detrimental to his mental and physical health.


[16]   On March 1, 2019, the trial court issued its Order, terminating Mother’s

       parental rights to her Child and concluding, in pertinent part, that 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,

       and there is a reasonable probability that the continuation of the parent-child

       relationship poses a threat to the well-being of the Child. Finding termination

       in the best interests of the Child, the trial court terminated the Mother-Child

       relationship.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 7 of 14
                               DISCUSSION AND DECISION
                                             A. Standard of Review

[18]   Mother challenges the termination of her parental rights to the Child. The

       Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. Bester v.

       Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A

       parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v.

       Granville, 530 U.S. 57, 65 (2000)). However, parental rights “are not absolute

       and must be subordinated to the child’s interests in determining the proper

       disposition of a petition to terminate parental rights.” Id. If “parents are unable

       or unwilling to meet their parental responsibilities,” termination of parental

       rights is appropriate. Id. We recognize that the termination of a parent-child

       relationship is “an ‘extreme measure’ and should only be utilized as a ‘last

       resort when all other reasonable efforts to protect the integrity of the natural

       relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child

       Servs., 39 N.E.3d 641, 646 (Ind. 2015).


[19]   Indiana courts rely on a “deferential standard of review in cases concerning the

       termination of parental rights” due to the trial court’s “unique position to assess

       the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.

       dismissed. Our court neither reweighs evidence nor assesses the credibility of

       witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.

       2013). We consider only the evidence and any reasonable inferences that

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 8 of 14
       support the trial court’s judgment, and we accord deference to the trial court’s

       “opportunity to judge the credibility of the witnesses firsthand.” Id.


                                  B. Termination of Parental Rights Statute

[20]   In order to terminate a parent’s rights to his child, DCS must prove:


               (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.
               ****
               (iii) The child has been removed from the parent and has been
               under the supervision of a local office . . . 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 [CHINS] . . . ;

               (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 [CHINS];

               (C) that termination is in the best interests of the child; and

               (D) that there is a satisfactory plan for the care and treatment of
               the child.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 9 of 14
       Ind. Code § 31-35-2-4(b)(2). DCS must prove each of the foregoing elements by

       clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,

       92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the

       existence of a fact to ‘be highly probable.’” Id. On appeal, Mother does not

       challenge the trial court’s finding that the Child has been removed from the

       home for the requisite period of time, that there is a satisfactory plan for the

       care and treatment of the Child, or that termination of her parental rights is in

       the best interests of the Child.


                                      C. Conditions have not been remedied 2

[21]   Mother claims that there is insufficient evidence to support the trial court’s

       determination that the conditions which resulted in the removal of the Child

       have not been remedied. It is well established that “[a] trial court must judge a

       parent’s fitness as of the time of the termination hearing and take into

       consideration evidence of changed conditions.” Stone v. Daviess Cnty. Div. of

       Children & Family Servs., 656 N.E.2d 824, 828 (Ind. Ct. App. 1995), trans. denied.

       In judging fitness, a trial court may properly consider, among other things, a

       parent’s substance abuse and lack of adequate housing and employment.




       2
         Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, DCS is required to prove
       only one of three listed elements. See In re A.K., 924 N.E.2d at 220-21. In this case, the trial court based its
       termination decision on DCS’s satisfaction of Indiana Code section 31-35-2-4(b)(2)(B)(i) & (ii)—that the
       conditions that resulted in the Child’s removal has not been remedied and the continuation of the parent-
       child relationship posed a threat to the Child’s well-being. Because Mother fails to challenge the trial court’s
       conclusion that a continued parent-child relationship would pose a threat to the Child, DCS satisfied the
       requirements of Indiana Code section 31-35-2-4(b)(2)(B). Nevertheless, because of the important rights at
       stake, we will address Mother’s argument.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019                     Page 10 of 14
       McBride v. Monroe Co. OFC, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The trial

       court may also consider a parent’s failure to respond to services. Lang v. Starke

       Co. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. “[H]abitual

       patterns of conduct must be evaluated to determine whether there is a

       substantial probability of future neglect or deprivation.” Stone, 656 N.E.2d at

       828. A trial court “need not wait until the children are irreversibly influenced

       by their deficient lifestyle such that their physical, mental and social growth is

       permanently impaired before terminating the parent-child relationship.” Id.

       Furthermore, “[c]lear and convincing evidence need not reveal that the

       continued custody of the parents is wholly inadequate for the child’s very

       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.” K.T.K., 989 N.E.2d at 1230.


[22]   In support of her argument that the conditions which resulted in the removal of

       the Child have been remedied, Mother refers to her change in behavior, starting

       in November 2018 through the date of trial in February 2019, which coincided

       with her entry in the drug court program and residency at Rose Home. She

       claims to now have stable housing, to be substance free, and to have engaged in

       meaningful counseling.


[23]   At the end of June 2017, DCS removed the Child from Mother’s care because

       of the domestic abuse with Father, Mother’s alcohol and substance abuse, and

       her neglect of the Child. During the next sixteen months, Mother failed to

       undertake any steps towards the reunification with Child. She did not address

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 11 of 14
       her alcohol and drug addiction, she was inconsistent with services, and failed to

       maintain contact with DCS. In June 2018, Mother’s visits with Child were

       suspended due to her failure to complete services and remain in contact with

       DCS. During the pendency of the CHINS and termination proceedings,

       Mother was transient and lived in different homeless shelters and half-way

       houses. She was frequently evicted from the shelters due to noncompliance

       with the rules.


[24]   While we agree with Mother that her behavior improved after she entered the

       drug court program and took up residency at Rose Home, we also note that this

       change occurred after DCS filed its petition for termination of her parental

       rights to the Child. Nonetheless, on her first day with the drug court program,

       Mother tested positive for alcohol, and on subsequent days, she tested positive

       for alcohol and Xanax. Mother was arrested and remained in jail from October

       15, 2018 until she entered Rose Home on November 26, 2018. At Rose Home,

       Mother finally started complying with the drug court and the home’s rules.


[25]   Although Mother’s recent compliance is commendable, it only commenced

       one-and-one-half year after DCS instituted the informal adjustment and after

       the agency filed its termination petition. At the termination hearing, FCM

       Straight observed that Mother’s habitual pattern consists of entering a facility

       where she initially would do well but subsequently become noncompliant and

       would leave the program without completing it successfully. Although FCM

       Straight credited Mother for her progress at Rose Home, she also advised that

       Mother had an ankle monitor and an incentive to follow her programs because

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 12 of 14
       otherwise she would be required to serve thirty months in prison. Furthermore,

       while Mother acknowledges that her marriage to Father is abusive and

       violent—and a factor in DCS’s detainment of the Child—Mother was still

       married to him at the time of the termination hearing. The last time the parents

       talked, Mother initiated the contact with Father because she missed him. Even

       though Mother testified that she was going to divorce Father and had collected

       the paperwork, she advised that she would file for divorce when she “figure[d]

       out how to fill it out and file it.” (Tr. p. 135).


[26]   A trial court is “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.’” K.T.K., 989 N.E.2d at 1234. “Requiring trial

       courts to give due regard to changed conditions does not preclude them from

       finding that parents’ past behavior is the best predictor of their future behavior.”

       In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Mindful of this guideline, the trial

       court observed in its Order, that “[d]espite Mother’s recent progress, and in

       light of the overall record of tremendous volatility, the [c]ourt is deeply

       skeptical of Mother’s ability to turn her recent successes into long-term stability

       for” the Child. (Appellant’s App. p. 32). Here, the evidence presented clearly

       and convincingly shows a reasonable probability exists that the conditions that

       led to the Child’s removal from Mother’s care will not be remedied. Mother’s

       recent turnaround in behavior and compliance with DCS’s services must be

       evaluated in light of a threat of thirty months of incarceration and a highly

       leveraged and supervised existence by the drug court and Rose Home for


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 13 of 14
       Mother to attain this change. There is no plan, nor even a semblance thereof,

       in place for Mother after her residency at Rose Home comes to an end and she

       is faced with the pressures of everyday life and the responsibility of maintaining

       a household. Accordingly, we find that the trial court’s conclusion that there is

       a reasonable probability that the conditions that resulted in the Child’s removal

       from Mother’s care will not be remedied was not clearly erroneous.


                                             CONCLUSION
[27]   Based on the foregoing, we conclude that DCS presented clear and convincing

       evidence to support the trial court’s Order terminating Mother’s parental rights

       to the Child.


[28]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 14 of 14
