MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                Apr 26 2016, 8:42 am
this Memorandum Decision shall not be
                                                                           CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
court except for the purpose of establishing                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael P. DeArmitt                                       Gregory F. Zoeller
Columbus, Indiana                                         Attorney General of Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorney Generals
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 26, 2016
of the Parent-Child Relationship                          Court of Appeals Case No.
of: R.H., C.H., and M.H.                                  03A01-1509-JT-1535
K.G. (Mother),                                            Appeal from the Bartholomew
                                                          Circuit Court
Appellant-Respondent,
                                                          The Honorable Stephen R.
        v.                                                Heimann, Judge
                                                          The Honorable Heather M. Mollo,
Indiana Department of Child                               Magistrate
Services,                                                 Trial Court Cause Nos.
                                                          03C01-1409-JT-4030
Appellee-Petitioner.
                                                          03C01-1409-JT-4031
                                                          03C01-1409-JT-4032



Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016          Page 1 of 11
                                        Statement of the Case
[1]   K.G. (“Mother”) appeals the termination of the parent-child relationship with

      her children, R.H., C.H., and M.H., claiming that the Department of Child

      Services (“DCS”) failed to prove by clear and convincing evidence that there is

      a reasonable probability that (1) the conditions that resulted in the children’s

      removal or the reasons for placement outside the parent’s home will not be

      remedied, and (2) that a continuation of the parent-child relationship poses a

      threat to the children’s well-being. Concluding there is sufficient evidence to

      support the trial court’s decision to terminate the parent-child relationship, we

      affirm.


[2]   We affirm.


                                                      Issue
              Whether there is sufficient evident to support the termination of
              the parent-child relationship.


                                                      Facts
[3]   At approximately 8:00 p.m. on May 12, 2013, law enforcement officers were

      dispatched to Mother’s home after receiving a report that her children, six-year-

      old R.H., two-year-old C.H., and one-year-old M.H. were not being supervised.

      When the officers arrived at the scene, they had to wake Mother, who told the

      officers that she had taken two Klonopin tablets at 1:30 p.m. and had been

      sleeping since that time. R.H. and C.H. were playing unsupervised, and M.H.

      was crying in her crib. The officers noticed an empty prescription bottle of

      Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016   Page 2 of 11
      hydrocodone that had been filled the day before. Mother did not know where

      the pills were but thought they could have been stolen. Mother was arrested

      and charged with neglect of a dependent. Her drug screen was positive for

      oxycodone, hydrocodone, and cocaine. Father was incarcerated at the time for

      convictions related to sexual misconduct with a minor. Because Mother and

      her children lived with Mother’s mother and stepfather, officers made

      arrangements for the children to stay in the home with their grandparents.


[4]   Two days later, DCS filed a petition alleging that R.H., C.H., and M.H. were

      children in need of services (“CHINS”). In June 2013, Mother stipulated that

      her children were CHINS and reached an agreement with DCS as to services.

      The trial court’s dispositional order required Mother to (1) complete an

      intensive outpatient drug program (“IOP”); (2) participate in home-based case

      management services to address housing, employment, substance abuse, and

      parenting, and follow all recommendations; (3) attend supervised visitation; (4)

      participate in individual therapy to address depression; (5) participate in and

      complete the Moving On program;1 (6) comply with the terms of probation; (7)

      maintain suitable housing; (8) secure a legal and stable source of income; (9)

      abstain from using drugs and controlled substances without a prescription; and

      (10) submit to random urine drug screens.




      1
       Mother described the Moving On program as a “program to help women move on from bad situations,
      circumstances, teach you coping skills to move past those.” (Tr.37).

      Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016      Page 3 of 11
[5]   When Mother failed to engage in services as ordered, DCS filed a petition to

      terminate her parental rights in September 2014. A hearing on the petition was

      held on February 6, 2015, and March 9, 2015. Evidence at the February

      hearing revealed that Mother began an IOP program in May 2013 and was

      diagnosed with multiple drug dependence and an opioid induced mood

      disorder. She was discharged from the program in August 2013 because of

      several positive drug screens. Mother was incarcerated in July and August 2013

      and again from September to November 2013 for driving while suspended,

      criminal trespass, and conversion. After her release in November, Mother

      failed to follow procedures to be readmitted to the IOP program. DCS referred

      Mother to another IOP program in April 2014. At the hearing, IOP substance

      abuse counselor Craig Lubbe (“Lubbe”) testified that Mother began a second

      IOP program in April 2014, but she did not complete it. Mother used alcohol

      three times during the program, and Lubbe opined that Mother’s ability to stay

      drug-free was at risk and that her ability to properly parent her children was a

      concern.


[6]   Mother’s home-based care service worker since May 2013, Ann Moore

      (“Moore”), testified that the goals of the program were to provide Mother with

      employment, community resourcing, housing and parenting skills. During the

      fifteen months that Moore worked with Mother, Mother showed no

      employment or housing stability. Moore testified that, based on what she had

      seen from Mother over the previous year, she did not believe Mother had the

      ability to accomplish the goal of stability in the foreseeable future.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016   Page 4 of 11
[7]   Mother’s DCS case manager, Kate Penn, (“Penn”) testified regarding Mother’s

      difficulties during supervised visitation. Specifically, Penn testified that in July

      2014, there was a “drastic decline in visits all of the sudden [and Mother] was

      losing her patience more often.” (Tr. 245). During one visit, Mother’s first

      comment to M.H. was that she was going to “whoop her ass.” (Tr. 245). Penn

      also testified that in the previous few months, Mother had been more interested

      in her phone than her children. During one visit, R.H. had to yell at Mother

      four times to get her attention. In addition, Penn testified that R.H. needs to

      have stability as well as clear and concise expectations that Mother has never

      been able to provide. Penn had also seen a drastic improvement in the behavior

      of C.H. and M.H. with their foster parents. Penn recommended the

      termination of Mother’s parental rights and adoption as a plan for all of the

      children.


[8]   CASA Jacki Mann (“Mann”) also recommended the termination of Mother’s

      parental rights. Specifically, Mann testified that Mother had not met any of her

      goals. She did not have stable employment or housing, and her parenting skills

      were not to the level of adequately caring for her children.


[9]   DCS case manager Amy Pawlus (“Pawlus”) testified regarding the impact of

      Mother’s actions on R.H.’s well-being. Specifically, Pawlus testified that while

      R.H. lived with Mother, he saw sexual activity, criminal activity, drug use, and

      domestic violence. During that time, Mother had failed to provide sufficient

      supervision and stability to R.H. because of her drug use. R.H. was cruel to



      Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016   Page 5 of 11
       animals, damaged property, set fires, and was suspended from school for

       fighting and disrupting classes. He also threatened harm to himself and others.


[10]   R.H.’s therapist, Christina Harmon (“Harmon”), diagnosed him with

       oppositional defiant disorder, post-traumatic stress disorder, and attention

       deficit hyperactive disorder. Harmon testified that the primary focus for R.H.

       was to find stability for him as quickly as possible. According to Harmon,

       R.H.’s placement in an unstable environment would only result in R.H.’s

       continued anger and aggression towards others. With weekly therapy and a

       structured foster home, R.H. became less angry and aggressive.


[11]   At the time of their placement, C.H. and M.H. had unmet medical needs,

       developmental delays, and behavioral issues. However, at the time of the

       termination hearing, M.H. had spoken and allowed others to hold her. C.H.

       had improved his ability to speak so that others were able to understand him,

       and he had developed a large vocabulary. Moore testified that they were

       “different child[ren],” (Tr. 226, 227), and attributed these positive changes to

       the stability of their foster home.


[12]   Mother also testified at the February hearing. She explained that she had left

       the IOP program in April 2014 because she was upset with the facilitator and

       that she had used marijuana since that time. She admitted that her longest

       period of employment had lasted only three months, and that she was not

       currently employed. She did not have stable housing because the house where

       she lived did not have running water. She also admitted that she had not visited


       Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016   Page 6 of 11
       with all three children since October 2014 and that it was difficult to manage all

       three children at the same time.


[13]   One month later, at the March 9 hearing, Mother testified that she had

       completed the Moving Up program and had a job interview scheduled. She also

       testified that she had community resources, including AA and NA meetings

       and an addictions counselor that she had been seeing for three months. She

       further testified that she had a social support system, which included a friend

       that she met when she worked at a hotel for four days. In addition, Mother

       testified that she would be willing to enter an IOP program.


[14]   Following the hearing, the trial court issued a detailed twelve-page order

       terminating Mother’s parental rights.2 Mother appeals.


                                                           Decision
[15]   Mother argues that there is insufficient evidence to support the termination of

       her parental rights. The Fourteenth Amendment to the United States

       Constitution protects the traditional right of parents to establish a home and

       raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,

       the law provides for termination of that right when parents are unwilling or

       unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147

       (Ind. 2005). The purpose of terminating parental rights is not to punish the




       2
           The trial court also terminated Father’s parental rights. Father has not filed an appellate brief in this case.


       Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016                    Page 7 of 11
       parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

       App. 1999), trans. denied.


[16]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-1230.


[17]   A petition to terminate parental rights must allege:


               (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

       Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016   Page 8 of 11
               (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 prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E .2d at 1231.


[18]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she contends that the evidence

       is insufficient to show that there is a reasonable probability that: (1) the

       conditions that resulted in her children’s removal or the reasons for placement

       outside the parent’s home will not be remedied; and (2) a continuation of the

       parent-child relationship poses a threat to her children’s well-being.


[19]   At the outset, we note that INDIANA CODE section 31-35-2-4(b)(2)(B) is written

       in the disjunctive. Therefore, DCS is required to establish by clear and

       convincing evidence only one of the three requirements of subsection (B). We

       therefore discuss only whether there is a reasonable probability that the

       conditions that resulted in the children’s removal or the reasons for their

       placement outside the parent’s home will not be remedied.


[20]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration
       Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016   Page 9 of 11
       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id.


[21]   Here, Mother argues that “given the improvements [she] made over the course

       of her CHINS case with regard to substance abuse, and given the insight she

       displayed regarding her addiction at the March 9, 2015 hearing, DCS did not

       meet its burden of clearly and convincingly proving that the conditions that

       resulted in the children’s removal would not be remedied.” (Mother’s Br. 15).

       However, our review of the evidence reveals that at the time of the February 6,

       2015 hearing, Mother had failed to complete two IOP programs, and her most

       recent IOP counselor testified that Mother’s ability to stay drug-free was at risk.

       In addition, Mother’s counselor was concerned about Mother’s ability to

       properly parent her children, and Mother’s home-based care service worker did

       not believe Mother had the ability to accomplish the goal of stability in the

       foreseeable future. The DCS case worker and the CASA both recommended

       termination of Mother’s parental rights because she had not met any of her

       goals and her parenting skills were not to the level of adequately caring for her

       three children, whose behavioral issues were improving because of the stability

       of their foster homes. Even Mother admitted that: she (1) had never been

       employed for longer than three months; (2) lacked stable housing because she

       had no running water; and (3) found it difficult to manage all three children at

       the same time.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016   Page 10 of 11
Mother, however, points to testimony from the second hearing. At that

hearing, Mother testified that she: (1) had completed one program; (2) had a

job interview scheduled; (3) was seeing an addictions counselor; (4) had a social

support system, which included a friend that she met when she worked at a

hotel for four days; and (5) would be willing to enter a third IOP program.

Mother’s reliance on this testimony is misplaced. Trial courts have discretion

to weigh a parent’s prior history more heavily than efforts made only shortly

before termination, and courts may find that a parent’s past behavior is the best

predictor of his or her future behavior. E.M., 4 N.E.3d at 643. DCS therefore

need not rule out all possibilities of change. In re Kay L., 867 N.E.2d 236, 242

(Ind. Ct. App. 2007). Rather, DCS need establish only that there is a

reasonable probability that the parent’s behavior will not change. Id. The trial

court’s conclusion that DCS met this burden is not clearly erroneous.


Affirmed.


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




Court of Appeals of Indiana | Memorandum Decision 03A01-1509-JT-1535 | April 26, 2016   Page 11 of 11
