MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                            Dec 20 2018, 8:34 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael B. Troemel                                       Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General

                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         December 20, 2018
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of J.H. (Minor                              18A-JT-1663
Child), and                                              Appeal from the Tippecanoe
D.H. (Mother),                                           Superior Court
                                                         The Honorable Faith A. Graham,
Appellant-Respondent,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         79D03-1712-JT-133
The Indiana Department of
Child Services,
Appellee-Petitioner



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018            Page 1 of 13
                                                 Case Summary
[1]   D.H. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental rights to her minor child, J.H. She argues that the evidence is

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

      Finding the evidence sufficient, we affirm.


                                    Facts and Procedural History
[2]   In February 2016, J.H. was removed from the care of Mother and J.H., Sr.

      (“Father”),1 on an emergency basis due to allegations of abuse and/or neglect.

      The Tippecanoe County Department of Child Services (“DCS”) filed a child in

      need of services (“CHINS”) petition regarding J.H. and, following a hearing,

      J.H. was adjudicated a CHINS. A dispositional decree was entered in May

      2016, and while the initial permanency plan was reunification, that plan

      subsequently changed to termination and adoption in November 2017.

      Following a termination hearing, the trial court made the following relevant

      findings of fact: 2


               1. Mother (DOB 06/01/1985) is the Mother and Father (DOB
               07/09/1982) is the Father of J.H. (DOB 01/08/2016).


               ….




      1
       The trial court also terminated Father’s parental rights as part of its order here, but Father does not
      participate in this appeal.
      2
       The trial court’s order references the parents and the minor child by their full names at times, and refers
      often to J.H. simply as “the child.” We use “Mother,” “Father,” and “J.H.” where appropriate.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018                    Page 2 of 13
        5. The reasons for the third CHINS case[3] included ongoing
        concerns related to drug use after J.H. tested positive for
        methamphetamine on February 15, 2016. Both Mother and
        Father denied drug use but were unable to provide an
        explanation for the child’s exposure to methamphetamine.…

        6. J.H. was placed in protective custody pursuant to a CHINS
        Detention Hearing Order issued on February 29, 2016. At that
        time, Mother was seventeen (17) weeks pregnant. A CASA was
        appointed to represent the best interests of J.H. J.H. was found
        to be a Child in Need of Services (“CHINS”) and a dispositional
        order was issued on May 20, 2016. J.H. has remained out of the
        parents’ care continuously since that date except for an
        unsuccessful trial home visit. In fact, J.H. has been out of the
        care of parents for over fifteen (15) of the most recent twenty-two
        (22) months.

        ….

        8. During the third CHINS case, Mother was offered the
        following services: abuse assessment and treatment, parenting
        assessment, case management, random drug screens, and
        parenting time. Mother was offered additional services including
        parent education, individual therapy, medication management,
        domestic violence assessment.… These services have been
        exhaustive and have been designed to address the difficulties that
        resulted in J.H.’s removal and continued placement outside the
        home.

        ….

        10. At the onset of the third CHINS case, the parents were



3
  Because Father had been involved in two prior CHINS proceedings regarding his three older children, for
clarity, the trial court’s termination order refers to the underlying CHINS proceeding here as “the third
CHINS case.” Appealed Order at 2.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018              Page 3 of 13
        married and residing together. Neither parent was employed,
        neither had housing, and both were dependent upon others to
        meet their own needs let alone the needs of J.H.

        11. Initially, both parents maintained contact with DCS and
        commenced assessments as required. The parents participated in
        services as recommended and regularly attended parenting time
        as scheduled. Father still struggled with substance use. After the
        parents obtained an appropriate residence, by order issued
        January 9, 2017, J.H. was placed with Mother on a trial home
        visit conditioned upon Father vacating the family home and
        adhering to a safety plan. Father was subsequently authorized to
        return to the home and participate in the trial home visit.

        12. During the trial home visit, concerns arose regarding
        substance use. Father tested positive for synthetic cannabinoids
        due to using “spice” twice daily. Father failed two (2) drug
        screens for alcohol, in February 2017 and March 2017. Mother
        tested positive for marijuana in June 2017. Mother admitted
        Father was using “spice” even when Father’s drug screens
        returned negative. Mother’s medication counts were not
        consistent with Mother’s prescriptions. Mother appeared to be
        under the influence when the children were in Mother’s care
        demonstrated by slurred speech and inability to focus. There
        were also reports of domestic violence in the home.


        13. The trial home visit was terminated on July 5, 2017 after
        Father was arrested in the family home. A large amount of spice
        and a one-hitter pipe was observed on a table in plain view.
        Despite Mother and J.H. being in the home at the time of
        Father’s arrest, Mother denied observing said items. Mother
        admitted taking more than the prescribed amount of her
        medication. DCS also took custody of the younger sibling (Ja.H.)
        born during the third CHINS case who is not a subject of this
        termination proceeding. Mother has other prior born children



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018   Page 4 of 13
        (ages 9 and 11) who reside in the care of their father and who are
        not subjects of this termination proceeding.


        14. After the trial home visit was terminated, participation of the
        parents in services declined. Mother filed for divorce in July
        2017. The family was evicted on August 10, 2017. Father was
        incarcerated from September 1, 2017 to November 6, 2017.
        Mother admitted herself for inpatient mental health treatment on
        November 16, 2017 due to depression and homicidal ideations.
        Upon release from the hospital on November 24, 2017, Mother
        disappeared until approximately January 5, 2018 during which
        time Mother failed to maintain contact with DCS, failed to
        participate in services, and failed to attend any visits after
        November 10, 2017. Father was arrested again on February 17,
        2018 and has since remained incarcerated.


        15. A permanency hearing was held on November 16, 2016 at
        which time the permanent plan remained reunification. A second
        permanency hearing was held on February 3, 2017 at which time
        the permanent plan remained reunification. A third permanency
        hearing was held on May 15, 2017 at which time the permanent
        plan remained reunification. A final permanency hearing was
        held on November 29, 2017 at which time the permanent plan
        was determined to be the initiation of proceedings for
        termination of parental rights and adoption.


        16. DCS filed its petitions in the above-referenced cause on
        December 11, 2017. The evidentiary hearing on the Verified
        Petitions to Terminate Parental Rights was held on March 7,
        2018.


        17. Mother has a history of unstable housing with four (4) or five
        (5) prior evictions. During most of the third CHINS case, Mother
        periodically resided with Maternal Grandmother, in her vehicle,
        and with various friends. Mother admitted Maternal

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018   Page 5 of 13
        Grandmother, Maternal Step Grandfather, and Maternal Aunt
        were all drug users who would steal Mother’s medication.


        18. Mother was prescribed a variety of medications at different
        times. At times, Mother was adamant she was taking
        medications as prescribed although she also reported a lapse in
        obtaining such medication due to an insurance issue. Mother
        allowed medication counts but there were frequently either more
        or less pills than expected according to the prescription. At times,
        Mother admitted forgetting to take medications as well as
        intentionally taking more of certain medications. Mother was
        observed to be under the influence at times demonstrated by
        swaying, inability to stand, slurred speech, slow reactions, and
        memory loss. Mother has at least two (2) other prior mental
        health admissions for suicidal ideations. Mother reports
        attending private therapy since June 2015.


        19. At the time of the termination hearing, Mother had been
        residing with a boyfriend since January 2018 who provides
        Mother with transportation. The boyfriend conducts
        maintenance at his apartment complex in exchange for rent.
        Mother obtained employment at various locations but failed to
        maintain a long-term position. Mother failed to consistently
        provide verification of employment or work schedules. At the
        time of the termination hearing, Mother reported employment at
        a grocery store starting January 28, 2018 but again failed to
        provide verification.


        20. Mother completed a substance abuse assessment. Mother
        consistently denied drug use despite testing positive for “spice”
        and marijuana. During the third CHINS case, Mother tested
        positive for the presence of drugs on 9/26/2016 (synthetic
        cannabinoids), 11/14/2016 (tramadol), 11/15/2016 (tramadol),
        12/19/2016 (tramadol), 12/28/2016 (tramadol), 01/10/2017
        (tramadol), 04/21/2017 (oxycodone), 04/26/2017 (oxycodone),
        06/05/2017 (marijuana), 06/30/2017 (alprazolam), 08/17/2017
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018   Page 6 of 13
        (tramadol), 08/18/2017 (tramadol), 08/21/2017 (tramadol),
        08/24/2017 (synthetic cannabinoids), 08/28/2017 (synthetic
        cannabinoids), 09/06/2017 (synthetic cannabinoids),
        09/26/2017 (alprazolam/tramadol), October 10, 2017
        (alprazolam/tramadol), October 19, 2017 (tramadol),
        11/01/2017 (tramadol), 11/02/2017 (alprazolam), 11/08/2017
        (tramadol), 11/11/2017 (hydrocodone/tramadol), 11/27/2017
        (tramadol) and 02/19/2018 (tramadol). Mother failed to take all
        drug screens as requested.


        21. Mother has not successfully completed any service. Mother
        participated in case management including parenting education.
        Since July 2017, Mother failed to attend sessions regularly and
        little progress was made. Mother was unsuccessfully discharged
        from case management services.


        22. Mother completed a parenting assessment and participated in
        parenting education. Mother was not receptive to parenting
        education or redirection during parenting time. Mother
        demonstrated angry and aggressive behaviors with Father and, at
        times, with the children who would then scream themselves. For
        example, Mother stated at a visit that she would stab
        Grandmother in the heart for cutting the children’s hair. Mother
        was observed co-sleeping with the younger child despite safety
        warnings. On some occasions, Mother’s visits were ended early
        when Mother failed to provide necessary supplies. Mother was
        discharged from fully-supervised parenting time in approximately
        October 2017 due to lack of consistent attendance.


        23. After resurfacing in January 2018, Mother resumed
        participation in home-based case management, private
        therapy/medication management, and random drug screens.
        However, Mother has maintained very limited contact with
        DCS. Mother’s parenting time is fully supervised at a facility
        twice per week for three (3) hours each visit. Mother’s recent re-
        engagement and short-term improvement does not outweigh an
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018   Page 7 of 13
              otherwise long-term demonstrated pattern of instability and
              neglect.


      Appealed Order at 2-5.


[3]   Based upon these findings of fact, the trial court concluded that: (1) there is a

      reasonable probability that the conditions that resulted in J.H.’s removal and

      continued placement outside the home will not be remedied by Mother; (2)

      there is a reasonable probability that the continuation of the relationship

      between Mother and J.H. poses a threat to his well-being; (3) termination of the

      parent-child relationship between Mother and J.H. is in his best interests; and

      (4) DCS has a satisfactory plan for the care and treatment of J.H., which is

      adoption. Accordingly, the trial court determined that DCS had proven the

      allegations of the petition to terminate parental rights by clear and convincing

      evidence and therefore terminated Mother’s parental rights. This appeal

      ensued.


                                     Discussion and Decision
[4]   “The purpose of terminating parental rights is not to punish the parents but,

      instead, to protect their children. Thus, although parental rights are of a

      constitutional dimension, the law provides for the termination of these rights

      when the parents are unable or unwilling to meet their parental

      responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

      omitted). “[T]ermination is intended as a last resort, available only when all




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018   Page 8 of 13
      other reasonable efforts have failed.” Id. A petition for the involuntary

      termination of parental rights must allege in pertinent part:


          (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 prove that termination is appropriate by

      a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144

      (Ind. 2016). If the trial 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).


[5]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018   Page 9 of 13
               the trial court’s judgment. Where the trial court enters findings
               of fact and conclusions thereon, we apply a two-tiered standard
               of review: we first determine whether the evidence supports the
               findings and then determine whether the findings support the
               judgment. In deference to the trial 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.


      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

      do not support the trial court’s conclusions or the conclusions do not support

      the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


[6]   Mother challenges the trial court’s conclusion that there is a reasonable

      probability that the conditions that led to J.H.’s removal and continued

      placement outside the home will not be remedied. 4 In determining whether

      there is a reasonable probability that the conditions that led to a child’s removal

      and continued placement outside the home will not be remedied, we engage in

      a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1231

      (Ind. 2013). First, “we must ascertain what conditions led to [his] placement

      and retention in foster care.” Id. Second, “we ‘determine whether there is a

      reasonable probability that those conditions will not be remedied.’” Id.




      4
        Mother also challenges the sufficiency of the evidence supporting the trial court’s conclusion that there is a
      reasonable probability that the continuation of the parent-child relationship poses a threat to J.H.’s well-
      being. However, Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly
      effectuate the termination of parental rights, the trial court need only find that one of the three requirements
      of that subsection has been established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs.,
      987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. Accordingly, we will address the sufficiency of the
      evidence regarding only one of the three requirements.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018                 Page 10 of 13
      (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010) (citing In re A.A.C., 682

      N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second step, the trial court must

      judge a parent’s fitness at the time of the termination proceeding, taking into

      consideration evidence of changed conditions, and balancing a parent’s recent

      improvements against “‘habitual pattern[s] of conduct to determine whether

      there is a substantial probability of future neglect or deprivation.’” In re E.M., 4

      N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “A pattern

      of unwillingness to deal with parenting problems and to cooperate with those

      providing social services, in conjunction with unchanged conditions, support a

      finding that there exists no reasonable probability that the conditions will

      change.” Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 372

      (Ind. Ct. App. 2007), trans. denied. The evidence presented by DCS “need not

      rule out all possibilities of change; rather, DCS need establish only that there is

      a reasonable probability that the parent’s behavior will not change.” In re Kay

      L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).


[7]   The record indicates that J.H. was initially removed from the parents’ care

      because he tested positive for methamphetamine, they lacked stable housing,

      and the parents depended on others for support. Although Mother did make

      some progress in services which led to J.H.’s return to her care for a trial home

      visit, J.H. was again removed in July 2017 due to Mother testing positive for

      marijuana, Mother abusing her prescription medication, Father’s drug use in

      the home, and domestic violence between Mother and Father.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018   Page 11 of 13
[8]   Rather than challenging any of the trial court’s specific findings of fact, Mother

      simply blames Father for J.H.’s initial removal from the home as well as the

      failed trial home visit and asserts that the evidence indicates that there is a

      reasonable probability that conditions will be remedied because she has now

      divorced Father. First, we reject Mother’s attempt to minimize the ample

      evidence of her own harmful behavior which led to J.H.’s removals and

      continued placement outside of her care. Specifically, the evidence shows that

      Mother failed to successfully complete any service, has never demonstrated

      receptivity to parenting education, and has consistently denied her own drug

      use despite testing positive on multiple occasions. Moreover, at the time of the

      termination hearing, although Mother claimed recent progress and re-

      engagement in services, the trial court noted that Mother had maintained very

      limited contact with DCS and continued to fail to provide proof of stable

      employment. Based on the evidence presented, the trial court concluded that

      Mother’s recent re-engagement and short-term improvement did not outweigh

      an otherwise long-term demonstrated pattern of instability and neglect. This

      was the trial court’s prerogative, and we decline Mother’s invitation to reweigh

      the evidence and second-guess that conclusion. See E.M., 4 N.E.3d at 643

      (noting that trial court is entrusted with this “delicate balance” and “has

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

      shortly before termination.”). Clear and convincing evidence supports the trial

      court’s conclusion that there is a reasonable probability that the conditions that

      led to J.H.’s removal and continued placement outside Mother’s care will not

      be remedied, and therefore the trial court’s conclusion is not clearly erroneous.
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018   Page 12 of 13
      Accordingly, we affirm the trial court’s order terminating Mother’s parental

      rights.


[9]   Affirmed.


      Vaidik, C.J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018   Page 13 of 13
