MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any
court except for the purpose of establishing                               Dec 20 2019, 8:20 am

the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                     Curtis T. Hill, Jr.
Clark County Public Defender’s Office                    Attorney General of Indiana
Jeffersonville, Indiana
                                                         Monika P. Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 20, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of J.T. (Child) and T.T.                                 19A-JT-1335
(Mother);                                                Appeal from the Clark Circuit
T.T. (Mother),                                           Court
                                                         The Honorable Vicki L.
Appellant-Respondent,
                                                         Carmichael
        v.                                               Trial Court Cause No.
                                                         10C04-1901-JT-3
The Indiana Department of
Child Services,
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019                   Page 1 of 14
[1]   T.T. (“Mother”) 1 appeals the involuntary termination of her parental rights to

      J.T. (“Child”). Mother argues a number of the trial court’s findings are not

      supported by the evidence. She also contends the trial court’s findings do not

      support the trial court’s conclusions that there was a reasonable probability the

      conditions under which Child was removed from her care would not be

      remedied and that the continuation of the Mother-Child relationship posed a

      risk to Child’s safety. We affirm.



                              Facts and Procedural History
[2]   Child was born to Mother on April 29, 2010. On August 1, 2016, the

      Department of Child Services (“DCS”) filed a petition alleging Child was a

      Child in Need of Services (“CHINS”) because Mother was “getting high in the

      garage and [Child] was unsupervised and running around.” (App. Vol. II at

      108.) On August 23, 2016, DCS removed Child from Mother’s care under an

      Emergency Order because Mother “fear[ed] that she would be homeless” and

      had placed Child with Child’s paternal grandmother. (Id. at 104.) On October

      20, 2016, Mother admitted Child was a CHINS, and the court adjudicated

      Child a CHINS.


[3]   On November 3 and December 1, 2016, the trial court entered dispositional

      orders requiring Mother to complete certain services. The trial court ordered




      1
        Jo.T. (“Father”) is Child’s father. Father was incarcerated for the entirety of these proceedings. His
      parental rights were also terminated, but he does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019                 Page 2 of 14
      Mother to, among other things, refrain from using drugs, complete random

      drug screens, maintain suitable housing and employment, complete substance

      abuse and individual therapy assessments and follow all recommendations, and

      visit with Child. Mother was initially compliant with services, and on July 6,

      2017, the trial court approved a temporary home visit. Child was returned to

      Mother’s care and lived with her for a year while both were receiving services

      under the CHINS order, but Child was again removed from her care on July

      12, 2018, because she tested positive for illegal substances on multiple occasions

      during the temporary home visit.


[4]   Thereafter, Mother’s participation in treatment programs declined, she

      continued to test positive for illegal substances, and she experienced periods of

      homelessness. On January 17, 2019, DCS filed a petition to involuntarily

      terminate Mother’s parental rights to Child. The trial court held evidentiary

      hearings on the matter on April 2, and April 9, 2019. On May 5, 2019, the trial

      court entered its order involuntarily terminating Mother’s parental rights to

      Child.



                                 Discussion and Decision
[5]   We review termination of parental rights with great deference. In re K.S., 750

      N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

      the credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

      2004), trans. denied. Instead, we consider only the evidence and reasonable

      inferences most favorable to the judgment. Id. In deference to the juvenile

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 3 of 14
      court’s unique position to assess the evidence, we will set aside a judgment

      terminating a parent-child relationship only if 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).


[6]   “The traditional right of parents to establish a home and raise their children is

      protected by the Fourteenth Amendment of the United States Constitution.” In

      re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A juvenile court

      must subordinate the interests of the parents to those of the child, however,

      when evaluating the circumstances surrounding a termination. In re K.S., 750

      N.E.2d at 837. The right to raise one’s own child should not be terminated

      solely because there is a better home available for the child, id., but parental

      rights may be terminated when a parent is unable or unwilling to meet his or

      her parental responsibilities. Id. at 836.


[7]   To terminate a parent-child relationship in Indiana, DCS must allege and

      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.
                       (ii)   A court has entered a finding under IC 31-34-21-5.6
                              that reasonable efforts for family preservation or
                              reunification are not required, including a
                              description of the court’s finding, the date of the
                              finding, and the manner in which the finding was
                              made.
                       (iii) The child has been removed from the parent and
                              has been under the supervision of a county office of
                              family and children or probation department for at
                              least fifteen (15) months of the most recent twenty-
      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 4 of 14
                              two (22) months, beginning with the date the child
                              is removed from the home as a result of the child
                              being alleged to be a child in need of services or a
                              delinquent child;
              (B)      that one (1) of the following is true:
                       (i)    There is a reasonable probability that the conditions
                              that resulted in the child’s removal or the reasons
                              for placement outside the home of the parents will
                              not be remedied.
                       (ii)   There is a reasonable probability that the
                              continuation of the parent-child relationship poses a
                              threat to the well-being of the child.
                       (iii) The child has, on two (2) separate occasions, been
                              adjudicated a child in need of services;
              (C)      that termination is in the best interests of the child; and
              (D)      that there is a satisfactory plan for the care and treatment
                       of the child.


      Ind. Code § 31-35-2-4(b)(2). DCS must provide clear and convincing proof of

      these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied.

      “[I]f the State fails to prove any one of these statutory elements, then it is not

      entitled to a judgment terminating parental rights.” Id. at 1261. Because

      parents have a constitutionally protected right to establish a home and raise

      their children, the State “must strictly comply with the statute terminating

      parental rights.” Platz v. Elkhart Cty. Dep’t of Pub. Welfare, 631 N.E.2d 16, 18

      (Ind. Ct. App. 1994).


[8]   When, as here, a judgment contains specific 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 determine whether the

      evidence supports the findings and whether the findings support the judgment.

      Id. “Findings are clearly erroneous only when the record contains no facts to

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 5 of 14
      support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

      102 (Ind. 1996). If the evidence and inferences support the juvenile court’s

      decision, we must affirm. In re L.S., 717 N.E.2d at 208. Mother contends the

      evidence does not support a number of the trial court’s findings and that the

      trial court’s findings do not support its conclusions that the circumstances under

      which Child was removed from her care would be remedied and that the

      continuation of the Mother-Child relationship poses a risk to Child.


                        Conditions Would Not Be Remedied
[9]   The juvenile court must judge a parent’s fitness to care for her children at the

      time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.

      2010). 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.

      Mother challenges a number of findings related to this conclusion, which we

      discuss infra. She also contends her successful completion of the Centerstone

      program, her stable housing and employment at certain times during the

      proceedings, and her continued participation in therapy indicate she was

      “making progress toward stability,” and thus the trial court’s conclusion that

      the circumstances under which Child was removed from her care would not be

      remedied was not supported by the trial court’s findings. (Br. of Appellant at

      15.)



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 6 of 14
                                                    Finding 1

[10]   Finding 1 of the trial court’s order states: “[Child] is nine (9) years of age, born

       April 29, 2010.” (App. Vol. III at 137.) Mother argues the finding is not

       supported by the evidence because, at the time of the termination hearing on

       April 9, 2019, Child was eight years old, as his birthday did not occur until after

       the hearing. However, as the State points out, the trial court’s order was

       entered on May 5, 2019, after Child’s ninth birthday. This is not an error – the

       trial court correctly listed Child’s birthday and his age was correctly stated in

       the order.


                                                   Finding 16

[11]   Mother also challenges Finding 16 of the trial court’s order, which states,

       “[Mother’s] lack of stable housing caused her to move into a home where she

       was battered. [Child] witnessed his [M]other being beaten.” (App. Vol. III at

       138.) Mother argues that, “[w]hile there is testimony regarding various places

       [Mother] has lived, there is nothing establishing a causal link that she was

       battered as a result.” (Br. of Appellant at 10.) Additionally, she contends that,

       while DCS presented evidence that Child had been exposed to domestic

       violence, “it does not say that he saw his mother beaten.” (Id. at 11.)


[12]   We agree with Mother. DCS presented testimony from Child’s therapist, who

       also met with Mother, that “[Child] has had some exposure to domestic

       violence[,]” (Tr. Vol. II at 18), but the therapist did not indicate the victim of

       that domestic violence was Mother. The Director of Family Drug Treatment


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 7 of 14
       Court testified that Mother was in a number of “domestically violent

       relationships . . . [and] all those situations were chaotic . . . [including] an

       incident where she was involved in a domestic situation where boyfriend’s

       friend had abused her[,]” (id. at 49), but the Director did not testify that Child

       was present during any of those incidents when Mother experienced abuse.


[13]   However, any error in this finding is harmless because, as we will note infra,

       DCS presented sufficient evidence to prove other findings that support the trial

       court’s decision to terminate Mother’s parental rights. See Matter of A.C.B., 598

       N.E.2d 570, 573 (Ind. Ct. App. 1992) (affirming termination of parental rights

       despite erroneous findings because other findings supported termination).


                                                   Finding 24

[14]   Finding 24 of the trial court’s order states: “[Mother] persisted in illegal drug

       use throughout the life of the CHINS case. Despite the offer of intensive

       services such as Family Treatment Drug Court, Intensive Outpatient treatment,

       and individual counseling, [Mother] continued to test positive for THC,

       amphetamines, methamphetamine, and occasionally cocaine.” (App. Vol. III

       at 139.) Mother argues the term “persisted” is “misleading” because not every

       drug test she took was positive and because there were extended periods of time

       in which she tested negative for drugs, including a portion of time during which

       Child lived with her during the CHINS proceedings. She also contends the trial

       court should not have relied on her marijuana use to determine whether to

       terminate her parental rights to Child because marijuana is legal is some states,


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 8 of 14
       possession carries a low criminal penalty in Indiana, and DCS did not prove

       Mother’s marijuana use affected Child’s well-being.


[15]   Mother’s arguments are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

       (appellate court cannot reweigh evidence or judge credibility of witnesses). Of

       Mother’s eighty-six drug tests, only fourteen were negative for all drugs. A

       majority of the positive tests were positive for marijuana, and some were also

       positive for amphetamine, methamphetamine, and cocaine. Mother

       consistently maintained throughout the proceedings that she did not have a

       drug problem because she believed marijuana should be legal. She told her

       family case manager that she did not intend to stop smoking marijuana, even

       though the family case manager told Mother that Child would not be placed

       with her until she stopped doing so. Based thereon, we cannot say DCS did not

       present evidence to support the trial court’s finding.


                                                   Finding 25

[16]   Finding 25 of the trial court’s order states, in relevant part:


               25. [Mother] resisted, and even rejected, services that would
               assist her in dealing with her substance abuse.


                        a. [Mother] refused to follow the treatment
                        recommendations from the first substance abuse
                        assessment.


                        b. She refused to participate in inpatient drug treatment.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 9 of 14
                        c. She would not participate in the treatment programs
                        available at the Healing Place.


                                                         *****


                        e. She was discharged from Intensive Outpatient due to
                        her continued drug use.


                        f. She was terminated from Family Treatment Drug Court
                        due to noncompliance.


       (App. Vol. III at 139-40.) Mother argues the finding “ignores the broader

       reality that, as this Court knows, recovery is a trial and error process with many

       setbacks along the way, requiring patience and repeated effort before recovery is

       reached.” (Br. of Appellant at 12.) Regarding the trial court’s specific sub-

       findings, Mother argues: she completed an inpatient drug treatment program at

       Centerstone; she was not specifically required to go to the Healing Place and in

       fact attended there for one day; while she was discharged from Intensive

       Outpatient, she followed up with her therapist for additional treatment; and

       while she was terminated from Family Treatment Drug Court, she then entered

       and completed a thirty-day program at Centerstone.


[17]   Mother’s arguments are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

       (appellate court cannot reweigh the evidence or judge the credibility of

       witnesses). While Mother did complete a thirty-day inpatient drug treatment at

       Centerstone, she did so after the other treatment failures as described in the


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 10 of 14
       finding and after DCS filed a petition for the termination of her parental rights

       to Child. Further, while Mother completed the treatment at Centerstone, she

       tested positive for marijuana twice after her treatment was over. Based thereon,

       we cannot say DCS did not present sufficient evidence to support the finding.


                                                   Finding 26

[18]   Finding 26 of the trial court’s order states: “[Mother] did not take advantage of

       the domestic violence services that were offered. Out of the 26-week program

       available through Associates in Counseling and Psychotherapy (“ACP”),

       [Mother] attended seven (7) meetings – the intake interview and six group

       sessions.” (App. Vol. III at 140.) Mother argues that while she did not

       complete the ACP program, she went for seven weeks, and “it does not follow

       that she did not learn anything from it.” (Br. of Appellant at 14.) She also

       notes the testimony of the Director of the Family Drug Treatment, who told the

       court that Mother contacted her for help getting out of an abusive situation, and

       that Mother “did the right thing.” (Tr. Vol. II at 49.)


[19]   Mother’s arguments are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

       (appellate court cannot reweigh the evidence or judge the credibility of

       witnesses). DCS presented evidence that Mother did not complete the domestic

       violence treatment program, as was required. We cannot say that DCS did not

       present sufficient evidence to support this finding.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 11 of 14
                                                Other Findings

[20]   Further, as DCS points out, even if any of these findings were not supported by

       the evidence, those erroneous findings would be harmless because the

       unchallenged findings support the trial court’s decision to terminate Mother’s

       parental rights. See Matter of A.C.B., 598 N.E.2d at 573 (affirming termination of

       parental rights despite erroneous findings because other findings supported

       termination). Such findings include:


               19. [Child] has remained outside the parent’s home due to . . .
               [Mother’]s drug use, her failure to secure stable housing, and her
               failure to maintain consistent employment.


                                                    *****


               27. [Mother] did not cooperate with homebased service
               providers who tried to assist her with housing and employment.
               [Mother] missed appointments. She resisted offers for help –
               indicating she was able to find housing and employment on her
               own. Some referrals were closed due to [Mother’s] lack of
               participation.


               28. [Mother] did not fully cooperate with her DCS Family Case
               Manager – often being noncompliant and argumentative.


               29. [Child] has been traumatized. This trauma has resulted in
               [sic] the domestic violence he has witnessed, along with
               [Mother’s] chaotic lifestyle. One witness described [Mother’s]
               lifestyle as a “roller coaster.”


                                                    *****


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 12 of 14
               31. [Child’s] therapist did not recommend reunification because
               [Mother] has not sought treatment for her own trauma.


                                                    *****


               40. As of the termination hearing, [Mother] did not have stable
               housing, she did not have employment, [and] she continued the
               use of illegal drugs.


       (App. Vol. III at 139-41.) As Mother does not challenge these findings, we

       accept them as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)

       (“Because Madlem does not challenge the findings of the trial court, they must

       be accepted as correct.”).


[21]   The trial court’s findings, with the exception of Finding 16, support the trial

       court’s conclusion that the conditions under which Child was removed from

       Mother’s care would not be remedied.                Thus, the conclusion was not

       erroneous. See In re G.M., 71 N.E.3d 898, 908 (Ind. Ct. App. 2017) (affirming

       the trial court’s conclusion that the conditions under which child was removed

       from mother’s care would not be remedied based on mother’s continued drug

       use and noncompliance with services).


       Continuation of Mother-Child Relationship Poses Risk to
                        Child’s Well-being
[22]   Mother also argues the trial court’s findings do not support its conclusion that

       the continuation of the Mother-Child relationship poses a risk to Child’s well-

       being. Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 13 of 14
       disjunctive, we need decide only if the evidence and findings support the trial

       court’s conclusion as to one of these two requirements. See In re L.S., 717

       N.E.2d at 209 (because statute written in disjunctive, court needs find only one

       requirement to terminate parental rights). Because the trial court’s findings

       supported its conclusion that the conditions under which Child was removed

       from Mother’s care would be not be remedied, we need not consider Mother’s

       argument regarding whether the continuation of the Mother-Child relationship

       poses a risk to Child’s well-being.



                                               Conclusion
[23]   DCS presented sufficient evidence to support the findings challenged by

       Mother. Also, the trial court’s findings support its conclusion that the

       conditions under which Child was removed from Mother’s care would not be

       remedied. Accordingly, we affirm the trial court’s order involuntarily

       terminating Mother’s parental rights to Child.


[24]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019   Page 14 of 14
