                                                                    FILED
MEMORANDUM DECISION
                                                               Jun 29 2016, 9:20 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cathy M. Brownson                                         Gregory F. Zoeller
Coots, Henke, & Wheeler, P.C.                             Attorney General of Indiana
Carmel, Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 29, 2016
of the Parent-Child Relationship                          Court of Appeals Case No.
of D.G., J.G., and H.G. (Minor                            29A02-1512-JT-2202
Children) and Je.G. (Mother);                             Appeal from the Hamilton Circuit
                                                          Court
Je.G. (Mother),                                           The Honorable Paul Felix, Judge
Appellant-Respondent,                                     The Honorable Todd Ruetz,
                                                          Magistrate
        v.                                                Trial Court Cause No.
                                                          29C01-1504-JT-605
The Indiana Department of                                 29C01-1504-JT-603
Child Services,                                           29C01-1504-JT-606

Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016    Page 1 of 12
      May, Judge.


[1]   Je.G. (“Mother”) 1 appeals the involuntary termination of her parental rights to

      H.G., D.G., and J.G. (collectively, “Children”). She argues the Department of

      Child Services (“DCS”) did not present sufficient evidence the conditions under

      which Children were removed from her care would not be remedied and

      termination of her parental rights was in the best interests of Children. We

      affirm.



                                Facts and Procedural History
[2]   Mother gave birth to H.G. on July 13, 2011, and to twins D.G. and J.G. on

      October 30, 2013. At birth, D.G. and J.G. tested positive for Hydrocodone, 2

      THC, and methamphetamine. Based thereon, Mother agreed to an Informal

      Adjustment (“IA”) with DCS, which offered her services including homebased

      case management, homebased therapy, drug and alcohol assessment and

      treatment, and random drug screens. Mother was not required to complete

      drug and alcohol treatment unless she tested positive for illegal substances.

      Mother tested positive for illegal substances multiple times during the IA but

      did not complete drug and alcohol treatment. She was incarcerated for

      unrelated charges on February 24, 2014.




      1
          Children’s respective fathers consented to adoption and do not participate in this appeal.
      2
          Mother had a valid prescription for Hydrocodone.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016             Page 2 of 12
[3]   On March 27, 2014, Mother tested positive for cocaine. On April 4, 2014, DCS

      alleged Children were Child(ren) in Need of Services (“CHINS”) and on April

      7, the trial court authorized DCS to remove Children from Mother’s care

      because Mother violated the terms of the IA. On September 3, 2014, the trial

      court adjudicated Children as CHINS based on Mother’s drug use and lack of

      participation in services offered as part of the IA.


[4]   On December 1, 2014, the trial court ordered Mother to complete a substance

      abuse assessment and follow all recommendations, complete a psychological

      assessment and follow all recommendations, complete a parenting assessment

      and follow all recommendations, visit regularly with Children, and submit to

      random drug and alcohol screenings. Mother was not compliant and on May

      4, 2015, the trial court changed Children’s permanency plan from reunification

      to adoption.


[5]   On June 4, 2015, DCS filed petitions to terminate Mother’s parental rights to

      Children. On October 15, 2015, the trial court held a fact-finding hearing on

      the termination petitions. On November 17, 2015, the trial court issued orders

      terminating Mother’s parental rights to Children.



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

      & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

      evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 3 of 12
      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’s unique position to assess the evidence, we will set aside a

      judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      534 U.S. 1161 (2002).


[7]   When, as here, a judgment contains findings of fact and conclusions thereon,

      we apply a two-tiered review. Bester v. Lake Cnty. Office of Family & Children, 839

      N.E.2d 143, 147 (Ind. 2005). We determine first whether the evidence supports

      the findings and second whether the findings support the judgment. Id.

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

      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.


[8]   “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 trial court must

      subordinate the interests of the parents to those of the children, 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 children should not be terminated solely

      because there is a better home available for the children, id., but parental rights

      may be terminated when a parent is unable or unwilling to meet her parental

      responsibilities. Id. at 836.
      Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 4 of 12
[9]    To terminate a parent-child relationship, the State must allege and prove:

                (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.


[10]   Ind. Code § 31-35-2-4(b)(2). The State 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. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[11]   Mother challenges the court’s conclusions that the conditions under which

       Children were removed would not be remedied, the continuation of the parent-




       Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 5 of 12
       child relationship posed a risk to Children, and termination was in the best

       interests of Children. 3


                       Reasonable Probability Conditions Would Not Be Remedied


[12]   The trial 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 County OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007).


[13]   Children were removed from Mother’s home because Mother repeatedly tested

       positive for drugs. The trial court found: 4

                4. On or about October 30, 2015, [D.G. and J.G. were] born
                with a controlled substance in [their bodies]. As a result, Mother
                entered into a program of Informal Adjustment [IA] with the
                DCS on November 26, 2013.




       3
        The trial court found the conditions under which Children were removed would not be remedied and the
       continuation of the parent-child relationship posed a threat to Children. DCS does not have to prove both.
       The statute is written in the disjunctive, and DCS must prove either by clear and convincing evidence. Ind.
       Code § 31-35-2-4. Because the evidence supports the conclusion there was a reasonable probability that the
       conditions leading to Children’s removal would not be remedied, we need not address whether the
       continuation of the parent-child relationship posed a threat to Children’s well-being.
       4
         The trial court entered a separate order for each child; however, the findings were virtually identical and
       thus we quote only the order concerning D.G.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016                Page 6 of 12
        5. A requirement of the IA was to discontinue use of illegal
        substances;


        6. Mother was offered home based casework, counseling, a
        substance abuse assessment, and random drug screens
        throughout the IA;


        7. Mother continued to test positive for illegal substances
        throughout the IA;


                                              *****


        9. Mother tested positive for cocaine after a drug screen on
        March 27, 2014;


                                              *****


        18. During the CHINS proceeding,


                 a. Mother was ordered to participate in a substance abuse
                 assessment and a psychological evaluation;


                 b. Mother completed a substance abuse assessment on
                 March 9, 2015. The assessment recommended that
                 Mother participate in Intensive Outpatient Treatment
                 (IOP);


                 c. Mother never followed through with the continued
                 substance abuse treatment recommended in the
                 assessment. Mother was to begin IOP on March 10, 2015
                 and failed to begin.


                                              *****

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 7 of 12
               21. Mother has failed to complete a drug treatment program;


               22. In the last right [sic] (8) months, Mother has been charged
               five (5) times with new criminal charges relating to substance
               abuse[.]


       (App. at 16, 17, 20, 23.)


[14]   In addition, failure to visit one’s children “demonstrates a lack of commitment

       to complete the actions necessary to preserve the parent-child relationship.” In

       re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002). The trial court found

       Mother was ordered to participate in supervised visitation with Children, but:

               h. Mother often appeared late for visits and was inappropriate
               when the visits were held at the placement’s 5 home. Mother
               argued with the placement in front of the Child[ren] during
               visitation;


               i. Mother came to visits under the influence of alcohol or drugs;


               j. Visitation was suspended by order of the Court effective
               October 31, 2014 and a hearing was set;


               k. The Court ordered Mother on January 26, 2015 to participate
               in a substance abuse assessment and a psychological evaluation
               and comply with all recommendations of that assessment,
               comply with all drug screen requests, demonstrate a minimum
               period of sixty (60) days of strict compliance with the Court’s



       5
         “The placement” appears to be a reference to the Children’s respective paternal grandparents, with whom
       the Children were placed after they were removed from Mother’s care.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016           Page 8 of 12
               terms, both as to attending screens and having those screens
               return with negative results prior to visitation being reinitiated
               with the Child[ren].


       (App. at 21) (footnote added). Mother’s last visit with Children was October

       24, 2014.


[15]   Mother argues DCS did not present sufficient evidence the conditions under

       which Children were removed would not be remedied because “Mother had

       been clean and sober for two months at the time of the termination hearing in

       October 2015.” (Br. of Appellant at 15.) However, Mother was incarcerated

       for the time prior to the October 2015 hearing; thus it would seem her access to

       illegal substances was momentarily curtailed. Her temporary sobriety does not

       require us to overlook her conduct throughout the proceedings. See In re

       K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013) (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”); and see

       Prince v. Allen County DCS, 861 N.E.2d 1223, 1230-31 (Ind. Ct. App. 2007)

       (termination of parental rights appropriate when mother “has not demonstrated

       she will remain sober without the constant threat of imprisonment”). Mother’s

       argument is an invitation for us to reweigh the evidence, which we cannot do.

       See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or

       judge the credibility of witnesses).


                                            Children’s Best Interests



       Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 9 of 12
[16]   In determining what is in the children’s best interests, the juvenile court is

       required to look beyond the factors identified by DCS and consider the totality

       of the evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans.

       dismissed. A parent’s historical inability to provide a suitable environment along

       with the parent’s current inability to do so supports finding termination of

       parental rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896,

       990 (Ind. Ct. App. 2002). The recommendations of a DCS case manager and

       court-appointed advocate to terminate parental rights, in addition to evidence

       that conditions resulting in removal will not be remedied, are sufficient to show

       by clear and convincing evidence that termination is in the children’s best

       interests. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[17]   In addition to the trial court’s findings regarding Mother’s substance abuse and

       lack of visitation with Children, DCS presented testimony from the Guardian

       ad litem, who had concerns about Mother’s mental health based on Mother’s

       “erratic behavior” during conversations with her. (App. at 23.) At the time of

       the termination hearing, Mother was incarcerated and was not employed.

       Finally, the trial court found the Children were doing well in their current

       placement with their paternal grandparents, with whom they had lived since

       September 29, 2014.


[18]   Mother argues termination was not in the best interests of the Children because

       she was working towards reunification with Children by participating in

       services while she was incarcerated. Mother testified she had been accepted

       into Drug Court, which would allow her to participate in substance abuse

       Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 10 of 12
       services in an effort to avoid further jail time. Finally, Mother contends

       Children were young and thus additional time in relative care would not

       adversely affect them.


[19]   In support of her argument, Mother cites In Re G.Y., 904 N.E.2d 1257, 1265

       (Ind. 2009), reh’g denied, where termination was not in the best interests of G.Y.

       because his mother, who was incarcerated for a crime committed prior to

       G.Y.’s conception, had completed services and maintained contact with G.Y.

       while she was incarcerated. In addition, her release from incarceration was

       imminent.


[20]   Such is not the case here. Mother was arrested multiple times during the

       CHINS and TPR proceedings, had consistently tested positive for illegal

       substances, had not completed services, and had not visited with Children for

       approximately a year before her parental rights were terminated. Mother’s

       arguments are invitations for us to reweigh the evidence, which we cannot do.

       See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or

       judge the credibility of witnesses).



                                               Conclusion
[21]   DCS provided sufficient evidence the circumstances under which Children were

       removed from Mother’s home would not be remedied and termination was in

       Children’s best interests. Accordingly, we affirm the termination of Mother’s

       parental rights to Children.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 11 of 12
[22]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 12 of 12
