In the Termination of the Parent-Child Relationship of: A.B. and D.B. (Minor Children) and J.L. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 04 2019, 7:58 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- September 4, 2019 Child Relationship of: Court of Appeals Case No. 19A-JT-641 A.B. and D.B. (Minor Children) Appeal from the Vigo Circuit and Court J.L. (Mother) The Honorable Sarah K. Mullican, Appellant-Respondent, Judge The Honorable Daniel W. Kelly, v. Magistrate Trial Court Cause Nos. Indiana Department of Child 84C01-1805-JT-626, 84C01-1805- Services, JT-627 Appellee-Petitioner

Altice, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 1 of 16

Case Summary [1] J.L. (Mother) appeals following the termination of her parental rights to A.B.

and D.B., Jr. (collectively, the Children). On appeal, Mother argues that the

evidence is insufficient to support the court’s termination of her parental rights

to the Children. [2] We affirm.

Facts & Procedural History [3] D.B. (Father) 1 and Mother are the biological parents of A.B., born August 25,

2012, and D.B., Jr., born August 5, 2013. 2 On June 7, 2016, the Department of

Child Services (DCS) filed, under separate cause numbers, petitions alleging

that the Children were children in need of services (CHINS). At an initial

hearing on June 21, 2016, Mother and Father admitted to the allegations in the

CHINS petitions as follows:

a. On or about March 22, 2016, the [DCS] hotline received a report that there was a chemical smell coming from the [family’s] trailer . . ., and that it burned your nose to smell it and that there were two young children in the home;

1 The court also terminated Father’s parental rights to the Children. Father, however, does not participate in this appeal. We thus set forth the facts only as they relate to Mother. 2 Mother has an older child who has been adopted by Mother’s mother (Maternal Grandmother). In September 2017, while the CHINS case was pending, Mother gave birth to a fourth child.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 2 of 16

b. [Family Case Manager (FCM)] Gonthier went to the home on March 25, 2016, and observed the home to be very cluttered, dirty dishes and trash throughout the home, there was very little food in the home;

c. Mother advised FCM that she was out of food stamps and would not receive next month[’]s until April 5, 2016;

d. [Mother] advised FCM that [Maternal Grandmother] would be bringing her food later in day [sic];

e. FCM asked [M]other to drug screen and she immediately began crying and stated that she had used methamphetamine the day before;

f. Mother’s drug screen from March 25, 2016 was positive for methamphetamine;

g. [Maternal Grandmother] came to the home with food;

h. The [M]aternal [G]randmother . . . agreed to be the sober caregiver and signed a safety plan to do so;

i. That [F]ather refused to drug screen unless there was a Court Order;

j. On April 8, 2016 FCM went to the home and it was messy and clutter[ed] and [M]other advised FCM that they were being evicted.

k. [Mother] showed FCM a hole punched in the wall that she stated she had done and that she needed help with anger management.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 3 of 16

l. That both parents repeatedly told FCM that everything was fine and they didn’t need services;

m. The family was evicted and now are living with [Mother’s] grandmother, the [C]hildren’s great grandmother.

n. Due to [the] high risk associated with methamphetamine use, the young age of the [C]hildren, the condition of the home, lack of food, and [M]other’s self-disclosure of anger issues the DCS believes that the [C]hildren are in imminent risk of abuse and neglect and that the coercive intervention of the Court is necessary to ensure that services are in place and followed by the family.

Exhibits 27-28, 32-33. The court adjudicated the Children to be CHINS. At that

time, however, the Children were not removed from the home. [4] On August 5, 2016, the court entered its dispositional order, requiring Mother

to maintain weekly contact with DCS and service providers, enroll in all

programs recommended by DCS and/or service providers, maintain suitable

housing, secure employment, not use illegal drugs, complete a substance-abuse

assessment and all recommendations, and submit to random drug screens with

any screen not completed in a timely manner considered a positive result. [5] On December 8, 2016, after Mother tested positive for and admitted using

methamphetamine, the Children were removed from her care. At that time,

DCS also noted a lack of compliance with services, ongoing concerns about a

lack of a sober caregiver, and ongoing concerns about the cleanliness of the

Children. Following a dispositional modification hearing on December 12,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 4 of 16

2016, the court approved of the Children’s placement in foster care and ordered

Mother to participate in supervised visits. [6] Over the course of the next few months, Mother completed the medication

evaluation and started medication management services at Hamilton Center for

her psychiatric conditions, including bi-polar disorder, ADHD, anxiety,

depression, PTSD, and possible split personality disorder. Mother also

completed a substance-abuse assessment on April 3, 2017. Mother, however,

attended only two or three days of the eight-week group therapy recommended

for her substance abuse. [7] Beginning in May 2017, Mother secured stable housing and employment and

kept in regular contact with FCM Charissa Antrobus as well as service

providers. Mother rented a house owned by and across the street from

Maternal Grandmother’s home. Mother attended her supervised visits and

developed a bond with the Children. Mother was also consistent in submitting

to drug screens. FCM Antrobus testified that Mother was “very determined

and focused” on getting the Children home. Transcript at 60. Given Mother’s

compliance with services, DCS increased the frequency of Mother’s visits with

the Children. On December 22, 2017, DCS permitted the Children to be

returned to Mother’s care for a trial home visit. [8] In February 2018, Maternal Grandmother reported to DCS that the Children

complained of being hungry and that Mother often left the Children in the care

of their great-grandmother, who also lived in the house, while Mother slept.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 5 of 16

DCS removed the Children from Mother’s home on February 27, 2018.

According to FCM Antrobus, the “determining factor” for ending the trial

home visit was that Mother submitted a positive drug screen. 3 Id. at 69. Over

the next few months, Mother struggled with substance abuse, was unable to

maintain stable housing, and did not visit with the Children. Due to Mother’s

non-compliance with services, DCS put services “on hold.” Id. at 54. On June

25, 2018, DCS filed its petition to terminate Mother’s parental rights to the

Children. A fact-finding hearing was held on September 25, 2018, and January

28, 2019. [9] At the September fact-finding hearing, Mother admitted she has a substance-

abuse problem and that she has struggled with methamphetamine for “two,

three years off and on.” Id. at 15. Mother explained that she started using

methamphetamine because she was “working . . . seven days a week, twelve

hour shifts plus doing on-line classes and taking care of the two kids by myself

basically. Not getting no sleep, going to work half asleep or falling asleep at

work.” Id. Mother claimed she only uses methamphetamine to “stay awake

and function.” Id. at 27. She admitted that “major life events have triggered

most of her relapses.” Id. at 33-34. [10] Mother also admitted that she had stopped participating in services after the

Children were removed in February. She stopped regularly submitting to drug

3 DCS also removed Mother’s youngest child, who then was only a few months old, and started CHINS proceedings with respect to that child.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 6 of 16

screens, admitting that she missed “too many to count.” Transcript at 20. Of

the drug screens to which Mother did submit, all were positive for

methamphetamine. Her last positive screen was eleven days before the

September hearing. Mother was charged with possession of methamphetamine

on June 4, 2018. Mother had not visited with the Children since they were

removed in February. Mother was also evicted from her home and for several

months, lived “[h]ere and there. On the streets basically.” Id. at 13. At the

time of the September fact-finding hearing, Mother was not working. She relied

on friends to pay her rent and pay for her vehicle. [11] The court adjourned the September 25 hearing and set an additional hearing

date for January 28, 2019. Mother understood that after the September hearing

she needed to “aggressively engage in services” if she wanted her Children

returned to her care. Id. at 108. After the September hearing, Mother was

evicted from where she was living because she used methamphetamine. She

explained, “I’d rather go out and get high than pay my bills is what it was down

to.” Id. at 102. Mother was on the streets until she went to a domestic violence

shelter in Terre Haute. Mother was “asked” to leave that program because she

“didn’t go to rehab.” Id. at 144. [12] In October 2018, Ramona Holland, a court appointed special advocate (CASA)

assigned to the Children for purposes of the termination proceedings, 4 initiated

4 CASA Holland was initially appointed in the Clay County CHINS case regarding Mother’s youngest child and interacted with Mother and the Children prior to her appointment in these proceedings.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 7 of 16

a no-contact order against Mother in October 2018. The no-contact order was

in response to Mother’s attempts to see the Children while they were at school.

According to CASA Holland, Mother also threatened multiple times to murder

various individuals associated with the CHINS cases if she did not get the

Children back and also threatened to kill herself. [13] On December 21, 2018, Mother went to Stepping Stones for substance-abuse

treatment. Mother refused to stay, however, because, according to Mother, she

was “treated like a prisoner” and “just didn’t feel comfortable.” Id. at 104.

Mother testified that she did not like the tone of their voices and that they tried

to make her throw away her e-cigarette and her phone. [14] Mother tried to do a substance abuse assessment in December 2018, but the

service referral had expired. Mother testified that she planned to schedule a

walk-in appointment. Two weeks prior to the January hearing, Mother again

started medication management. Maternal Grandmother testified that she did

not believe that Mother’s medications were helpful and that Mother does not

always take her medications. [15] Mother did not visit the Children until nearly two months after the September

hearing. Since their removal in February, Mother visited the Children only six

times out of thirty possible visits and appeared impaired during some of the

visits. Her last visit with the Children was on December 14, 2018. [16] FCM Antrobus opined that the reasons for DCS’s involvement were not likely

to be remedied, noting that the case had been open for nearly three years. She

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 8 of 16

testified that the Children need stability and need to know where they are going

to be for more than a few months. She was of the opinion that returning the

Children to Mother’s care would be harmful to the Children because of

Mother’s drug use and inconsistency. FCM Antrobus expressed concern about

Mother’s inability to maintain sobriety given Mother’s admitted relapse

triggers. FCM Antrobus acknowledged that Mother was “highly capable of

being a decent parent.” Id. at 73. She explained, however, that “we just go

back to the addiction and the issues of substance use and how triggers can easily

lead to a relapse and unfortunately in life there’s many triggers and there’s

many things that could lead to relapse and that would be at the expense of [the

C]hildren and that definitely concerns me.” Id. [17] FCM Alisha Hon took over the case on December 14, 2018. She testified that

reunification was not an option because Mother did not have a stable home, the

length of time the case had been open, and Mother had just started medication

management two weeks before the January hearing date. She also cited

concerns with Mother’s choice in relationships, noting that she seeks out

individuals who can take care of her but “they’re not always the best

influences.” Id. at 147. FCM Hon noted that the most recent individual

Mother was living with was arrested in October 2018 for possession of

methamphetamine. [18] CASA Holland likewise recommended termination based on Mother’s unstable

housing, drug use, and threats to kill individuals associated with the case in

addition to threats to kill herself. She testified that the Children need

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 9 of 16

permanency and should not need to wonder “where am I going to be” if

Mother “has a meltdown” and “goes back to drugs.” Id. at 177. [19] With regard to placement of the Children, after they were removed in February

2018, DCS placed them with Maternal Grandmother. In October 2018,

Maternal Grandmother advised DCS that she could no longer care for them.

DCS placed the Children in a foster home, where they remain together. DCS’s

plans for the Children include adoption by a foster family or perhaps a relative

placement. [20] At the January 2019 hearing, Mother testified that she had obtained housing

and transportation, had taken steps to address domestic violence in the home

and separate herself from bad influences, had enrolled in online college courses,

and had been sober since late November 2018. Mother testified that she

believes she can successfully complete all required services within two months

and requested that she be given the opportunity to do so. [21] At the conclusion of the hearing, the court took the matter under advisement.

On February 7, 2019, the court entered its ordering terminating Mother’s

parental rights to D.B. On February 11, 2019, the court entered its order

terminating Mother’s parental rights to A.B. Mother now appeals both orders.

Additional facts will be provided as necessary.

Discussion & Decision

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 10 of 16 [22] When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the 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 trial court’s unique position to assess the evidence, we will set aside its

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. Thus, if the

evidence and inferences support the decision, we must affirm. Id. [23] The trial court entered findings in its order terminating Mother’s parental rights.

When the trial court enters 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). First, we determine whether the

evidence supports the findings, and second, we determine whether the findings

support the judgment. Id. A judgment is clearly erroneous only if the findings

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

judgment thereon. Id. [24] We recognize that 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.

Although parental rights are of constitutional dimension, the law provides for

the termination of these rights when parents are unable or unwilling to meet

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

2008). In addition, a court must subordinate the interests of the parents to those

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 11 of 16

of the child when evaluating the circumstances surrounding the termination. In

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

parental rights is not to punish the parents, but to protect their children. Id. [25] Before an involuntary termination of parental rights may occur in Indiana, DCS

is required to allege and prove by “clear and convincing evidence,” 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.

(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[.]

Ind. Code § 31-37-14-2; Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove

by clear and convincing evidence that termination is in the best interests of the

child. I.C. § 31-35-2-4(b)(2)(C). [26] Mother does not challenge any of the court’s findings of fact. Thus, the issue

before us is whether the unchallenged findings support the court’s judgment. In

re S.S., 120 N.E.3d 605, 611 (Ind. Ct. App. 2019) (noting that “because neither

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 12 of 16

Father nor Mother has challenged these findings on appeal, we must accept

these findings as true”) (citing Bester, 839 N.E.2d at 147). [27] Mother challenges the court’s conclusions as to subsection (b)(2)(B)(i) and (ii).

We note that DCS was required to establish only one of the three requirements

of subsection (b)(2)(B) by clear and convincing evidence before the court could

terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App.

2003). Here, the court found that DCS presented sufficient evidence to

conclude that there is a reasonable probability the conditions resulting in the

Children’s removal or continued placement outside Mother’s care will not be

remedied and that continuation of the parent-child relationship poses a threat to

the Children’s well-being. See I.C. § 31-35-2-4 (b)(2)(B)(i), (ii). We focus our

review on the requirements of subsection (b)(2)(B)(i). [28] In determining whether there is a reasonable probability that the conditions

resulting in the Children’s removal or continued placement outside Mother’s

care will not be remedied, the trial court must judge a parent’s fitness to care for

his or her child at the time of the termination hearing, taking into consideration

evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App.

2001), trans. denied. The court must also evaluate the parent’s habitual patterns

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

neglect or deprivation of the child. Id. In making this determination, courts

may consider evidence of a parent’s prior criminal history, drug and alcohol

abuse, history of neglect, failure to provide support, and lack of adequate

housing and employment. A.F. v. Marion Cty. Office of Family & Children, 762

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 13 of 16

N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The court may also

consider the parent’s response to the services offered through DCS. Lang v.

Starke Cty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007),

trans. denied. [29] Mother argues that the court’s conclusion in this regard is clearly erroneous and

premature. She asserts that she has shown she is “capable of overcoming her

drug abuse” and that she is “well on her way and has indicated her intent to

maintain her sobriety and reclaim her children.” Appellant’s Brief at 23, 24.

Mother points out that after the September 2018 hearing, she sought medical

assistance, started taking her mental health medications, obtained housing and

transportation, and attempted to engage in services aimed at addressing her

drug addiction. Mother is essentially requesting us to reweigh the evidence,

which we will not do. See D.D., 804 N.E.2d at 265. [30] After the Children were removed in February 2018, Mother put forth minimal

effort to participate in services. She admitted that she missed “too many drug

screens” to count and that when she did screen, the results were positive.

Transcript at 20. Mother also admitted that she was essentially homeless, living

on the streets for a period of time. Mother also did not visit with the Children. [31] Mother’s situation did not improve much after the September 25 hearing at

which she was told she needed to “aggressively engage in services” if she

wanted the Children returned to her care. Id. at 108. Mother did not visit the

Children until November and had not visited with the Children since December

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 14 of 16

14, 2018. Mother also walked out of a substance-abuse treatment facility

because she did not like the rules, relied on friends to pay her rent and for her

transportation, and waited until two weeks prior to the January hearing to start

participating in medication management for her psychological disorders.

Mother had nearly three years to remedy the conditions that led to removal of

the Children and their continued placement outside her home. During that

time, Mother made poor decisions for herself and the Children, relapsed, and

thereafter continued to use methamphetamine, failed to address her mental

health issues, failed to complete services, failed to maintain suitable housing,

and failed to visit the Children. At the time of the final hearing, Mother had

not demonstrated an ability to care for the Children or that she should be

afforded more time to engage in services. [32] Mother’s pattern of substance abuse and her minimal effort to engage in

services since the Children were removed in February 2018 support the court’s

conclusion that there is a reasonable probability that the conditions resulting in

removal of the Children and their continued placement outside Mother’s home

will not be remedied. [33] Mother also argues that the court’s conclusion that termination is in the

Children’s best interests is clearly erroneous. To determine what is in the

children’s best interests, the 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 court must subordinate the interests of the parents to those of the children.

Id.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 15 of 16 [34] Mother argues that giving her additional time to participate in and complete

services is in the Children’s best interests. She cites FCM Antrobus’s testimony

that Mother has the potential to be a good mother. Again, Mother is simply

requesting that we reweigh the evidence. Although acknowledging that Mother

“is highly capable of being a decent parent,” FCM Antrobus opined that the

reasons for removal were not likely to be remedied and expressed concern that

returning the Children to Mother’s care would harm the Children due to

Mother’s inconsistency and her inability to maintain sobriety. While Mother

was able to achieve sobriety, such sobriety was short-lived and was followed by

a year of non-compliance with services. [35] Further, we note that two FCMs and a CASA discussed the Children’s need for

permanency and stability and testified that termination of Mother’s parental

rights is in the best interests of the Children. See In re J.S., 906 N.E.2d 226, 236

(Ind. Ct. App. 2009) (“the recommendations of the case manager and court-

appointed advocate to terminate parental rights, in addition to evidence that the

conditions resulting in removal will not be remedied, is sufficient to show by

clear and convincing evidence that termination is in the child’s best interests”).

The trial court’s best interest conclusion is not clearly erroneous. [36] Judgment affirmed.

Brown, J. and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-641 | September 4, 2019 Page 16 of 16