MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 May 22 2019, 8:26 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT A.P.                              ATTORNEYS FOR APPELLEE
Joann M. Price Franklin                                  Curtis T. Hill, Jr.
Merrillville, Indiana                                    Attorney General of Indiana
ATTORNEY FOR APPELLANT K.D.                              Lauren A. Jacobsen
                                                         Deputy Attorney General
Deidre L. Monroe
                                                         Indianapolis, Indiana
Crown Point, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA
In re the Termination of the                             May 22, 2019
Parent-Child Relationship of                             Court of Appeals Case No.
E.P. (Minor Child) and A.P.                              18A-JT-2949
(Father) and K.D. (Mother)                               Appeal from the
A.P. (Father) and                                        Lake Superior Court
K.D. (Mother),                                           The Honorable
                                                         Thomas P. Stefaniak, Jr., Judge
Appellants-Respondents,
                                                         Trial Court Cause No.
        v.                                               45D06-1711-JT-300


Indiana Department of Child
Services,
Appellee-Plaintiff



Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2949 | May 22, 2019                       Page 1 of 10
                                              Case Summary
[1]   A.P. (“Father”) and K.D. (“Mother”) (collectively, “Parents”) appeal the

      termination of their parental rights to E.P. (“Child”). We affirm.



                               Facts and Procedural History
[2]   The undisputed facts are set forth in the trial court’s order. 1 Father and Mother

      are the biological parents of Child, who was born in June 2014. Father has two

      other children and Mother has three other children that Parents do not share

      and are not involved in this appeal.


[3]   In May 2016, Child, who was one at the time, was living in Chicago with

      Father and his three-year-old daughter (“Child’s sibling”), and Mother was

      living at the Mosley Motel in Gary. On May 17 at 1:00 p.m., Lake County

      emergency medical services (EMS) was called to Mother’s motel room, where

      Father was “trying to save [Mother] from dying from heroin.” Ex. E. After

      arriving at the scene, EMS saw that Mother was “rolling around on the ground,

      complaining of pain.” Tr. p. 10. EMS believed that Mother was suffering from

      heroin withdrawal, took her to the hospital, and contacted the Department of




      1
        Father argues that “[t]he trial court simply stated that the ‘allegations in the petition are true’ and neglected
      to consider the evidence germane to maintaining Father’s parental rights.” Father’s Br. p. 10. That is not so.
      For example, the trial court found that “Father was compliant with visitations with [Child] from January
      2017 through August 2017.” Father’s App. Vol. II p. 3. Furthermore, we do not agree that the trial court’s
      findings are merely a recitation of the evidence presented at the termination hearing. While the order
      references evidence, it also contains thoughtful findings that flow from that evidence. As such, we conclude
      that the trial court’s findings of fact are sufficient, and because neither Mother nor Father otherwise
      challenges the findings, we accept them as true. See Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2949 | May 22, 2019                          Page 2 of 10
      Child Services (DCS) to report that Child was at the motel with an

      “unidentified male.” Id.


[4]   DCS assessment worker Leticia Flores responded and found that the

      “unidentified male” was Father. Father explained that he had brought Child

      and Child’s sibling to the motel from Illinois because Mother told him that she

      was going to commit suicide if he did not come. Father said that he thought

      bringing the children “would make [Mother] not want to do drugs any longer.”

      Id. at 11. Father said that Mother was known to abuse heroin and that she had

      been “dope sick” for the last four days. Father also said that he did not know

      whether Mother had recently used heroin because she did not use it in front of

      him or the children. Id. Father told Flores that he smoked marijuana the

      previous week, but when Flores tried to give him an instant drug screen, he

      could not produce enough saliva to complete the test. After speaking with

      Father, DCS workers took custody of Child, and Flores went to the hospital to

      speak with Mother. During Flores’ discussion with her, Mother admitted to

      using heroin the prior day, and her toxicology report showed that she had

      “benzoates, opiates, and THC” in her system. Id. at 14. When Flores told

      Mother that DCS had taken custody of Child, she became irate. Mother tried

      to pull out her IV and threw her vomit bucket at Flores. Later that day, Child

      was placed in emergency foster care, and DCS filed a petition alleging Child to

      be a Child in Need of Services (CHINS). DCS also filed a request to take Child

      into custody.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2949 | May 22, 2019   Page 3 of 10
[5]   Two days later, on May 19, the court held a hearing on the CHINS petition and

      detention request. Father denied the allegations in the petition. Mother was

      still in the hospital and did not appear, so the court continued the initial hearing

      on the CHINS petition so that Mother could be present. Regarding DCS’s

      request to take custody of Child, the court authorized Child to be placed with

      Father for “an extended visit” in Illinois pending the completion of procedures

      under the Interstate Compact on the Placement of Children (ICPC). Ex. G.

      The court also ordered Parents to submit to random drug screens and to

      complete substance-abuse assessments, clinical assessments, and parenting

      assessments. Mother was permitted to have supervised visitation with Child.

      On July 13, the court resumed the initial hearing on the CHINS petition.

      Mother appeared and admitted the allegations in the petition. Father denied

      the allegations, and the court set a fact-finding hearing for August 2016.

      During the fact-finding hearing, the court heard evidence that some members of

      Father’s Illinois household did not complete the ICPC background checks and

      that Illinois had denied the ICPC. Following the hearing, the court found that

      Child was a CHINS and ordered that Child be removed from Father’s care

      because he had not complied with the ICPC process. Child was placed in foster

      care with R.G. and his family. The court also ordered that Parents participate

      in services, including supervised visitation, drug screens, clinical assessments,

      substance-abuse assessments, and parenting assessments. Parents completed

      their substance-abuse assessments, but Mother did not complete her intensive

      outpatient program as recommended. Parents submitted to some drug screens

      but did not complete all the required drug screens. For instance, the court

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2949 | May 22, 2019   Page 4 of 10
      ordered Parents to submit to drug screens twice a week, but during an eight-

      month period, Mother only submitted to thirteen drug screens and Father only

      submitted to seventeen or eighteen drug screens. Later, in February 2017,

      Parents stopped submitting to drug screens altogether, even though they were

      still obligated to do so.


[6]   For a time, Parents participated in supervised visitation with Child, but on

      September 14, Parents were detained by police because they brought drug

      paraphernalia to one of their visits with Child. After that, DCS requested, and

      the court ordered, that visitation be suspended until Parents participated in

      services and tested negative for drugs for thirty days. Parents never participated

      in services or tested negative for drugs for thirty days to restore visitation with

      Child.


[7]   In November 2017, DCS filed a petition to terminate Parents’ parental rights,

      and the trial court set a fact-finding hearing for August 21, 2018. The day of the

      hearing, Parents requested, and the court granted, a continuance to give Parents

      an opportunity to participate in saliva drug screens as well as hair-follicle drug

      screens. In the first drug screens that Parents had completed in eighteen

      months, Father tested positive for THC, heroin, and morphine, and Mother

      tested positive for THC, cocaine, heroin, morphine, and fentanyl. Neither

      parent ever completed a hair-follicle drug screen. Then, on September 26,

      Mother took another saliva drug screen. That day, she tested positive for THC,

      cocaine, heroin, morphine, fentanyl, and tramadol, and after this drug screen,

      Family Case Manager Anabel Castillo received a call from Forensic Fluids

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2949 | May 22, 2019   Page 5 of 10
      explaining that this drug screen showed that Mother had a lethal amount of

      fentanyl and heroin in her system.


[8]   On October 16, the court resumed the fact-finding hearing on the termination

      petition. Flores testified that when Child was removed from Mother’s motel

      room, aside from the drug-related issues, she was concerned that Father had

      brought Child to the motel knowing that Mother “was saying that she was

      going to kill herself if he didn’t come.” Tr. p. 15. FCM Castillo said that

      although Child was placed with Father after the detention hearing and

      remained in his care until August 2016, Child was later removed because

      “Father did not comply with the ICPC process and for that reason Illinois

      decided to deny the ICPC.” Id. at 31. Aside from not complying with the

      ICPC process, FCM Castillo testified that Father did not comply with drug

      screens or other services throughout the CHINS case. Regarding Mother, FCM

      Castillo testified that she continued to test positive for drugs throughout the

      CHINS case and that in Mother’s September 26 drug screen, there was a lethal

      amount of fentanyl and heroin in her system. As far as housing, FCM Castillo

      said that throughout the CHINS case, Parents lived in various motels and, at

      one point, “they were living in a tent in the woods.” Id. at 36. FCM Castillo

      stated that termination of Parents’ parental rights and adoption by Child’s foster

      family is in Child’s best interests. R.G. testified that Child had been placed

      with his family for two-and-a-half years and that they would pursue adoption of

      Child if Parents’ parental rights were terminated. R.G. said that Child had not

      had any visits with Parents in over a year and that she “no longer speaks [about


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2949 | May 22, 2019   Page 6 of 10
       or] asks any questions about her prior family.” Id. at 55. In November 2018,

       the court issued its order terminating Parents’ parental rights.


[9]    Father and Mother separately appeal.



                                  Discussion and Decision
[10]   Parents contend that the evidence is insufficient to support the trial court’s

       order terminating their parental rights to Child. When reviewing the

       termination of parental rights, we do not reweigh the evidence or judge witness

       credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we

       consider only the evidence and reasonable inferences that are most favorable to

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

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

       unless clearly erroneous. Id. To determine whether a judgment terminating

       parental rights is clearly erroneous, we review whether the evidence supports

       the trial court’s findings and whether the findings support the judgment. In re

       V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[11]   A petition to terminate parental rights must allege, among other things:


               (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.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2949 | May 22, 2019   Page 7 of 10
                        (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 prove the alleged circumstances by

       clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court

       finds that the allegations in a petition are true, the court shall terminate the

       parent-child relationship. Ind. Code § 31-35-2-8(a).


[12]   Parents first argue that there is insufficient evidence to support the trial court’s

       conclusion that the conditions resulting in Child’s removal will not be

       remedied. In determining whether the conditions that resulted in a child’s

       removal will not be remedied, the trial court engages in a two-step analysis.

       First, the trial court must ascertain what conditions led to the child’s placement

       and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial

       court determines whether there is a reasonable probability that those conditions

       will not be remedied. Id. “The trial court must consider a parent’s habitual

       pattern conduct to determine whether there is a substantial probability of future

       neglect or deprivation.” Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2949 | May 22, 2019    Page 8 of 10
[13]   Here, Parents failed to demonstrate that they were any closer to providing Child

       a safe, stable home than they were at the beginning of the CHINS case. The

       trial court found that Mother is taking lethal amounts of drugs and Father

       continues to test positive for heroin, morphine, and THC. The trial court

       determined that neither parent accepted services offered by DCS and that

       Parents have continued with “their dangerous lifestyles and continue to

       experience lack of housing.” Mother’s App. Vol. II p. 4. As such, the trial

       court did not err when it concluded that there is a reasonable probability that

       the conditions resulting in Child’s removal and continued placement outside

       the home will not be remedied.2


[14]   Next, Mother argues that the trial court erred in concluding that termination is

       in Child’s best interests. To determine what is in the child’s best interests, the

       trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d

       1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must

       subordinate the interests of the parents to those of the child. Id. The trial court

       need not wait until the child is irreversibly harmed before terminating the

       parent-child relationship. Id. “Moreover, the testimony of service providers




       2
         Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
       resulted in Child’s removal will not be remedied, we do not address its alternate conclusion that there is a
       reasonable probability that the continuation of the parent-child relationships pose a threat to the well-being of
       Child. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2) is
       written in the disjunctive and requires the trial court to find only one of the two requirements of subsection
       (b) has been established by clear and convincing evidence), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2949 | May 22, 2019                        Page 9 of 10
       may support a finding that termination is in the child’s best interests.” In re

       Z.B., 108 N.E.3d 895, 903 (Ind. Ct. App. 2018), trans. denied.


[15]   Here, in addition to Mother’s substance-abuse issues that necessitated DCS

       involvement and her complete lack of progress since then, FCM Castillo

       testified that terminating Mother’s parental rights would serve the best interests

       of Child. See Tr. p. 35. Furthermore, the trial court found that Child has been

       in the same foster home for the past two-and-a-half years (over half her life) and

       is bonded to her foster family. See Mother’s App. Vol. II p. 4. Finally, the trial

       court concluded that it would “be unfair to [Child] to delay such permanency

       on the very remote likelihood of [Parents] committing to and completing

       services.” Id. Therefore, the trial court did not err when it determined that

       termination is in Child’s best interests. See also In re K.T.K., 989 N.E.2d at 1230

       (finding that “children have an interest in terminating parental rights that

       prevent adoption and inhibit establishing secure, stable, long-term, continuous

       relationships”); see also In re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct. App. 2004)

       (children’s needs are too substantial to force them to wait while determining if

       their parents will be able to parent them).


[16]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2949 | May 22, 2019   Page 10 of 10
