In the Matter of the Termination of the Parent-Child Relationship of I.T., S.T., and W.T., minor children, and C.T., Mother, and W.T., Father v. Indiana Department of Child Services

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Sep 04 2014, 9:35 am
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 APPELLANTS: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana

ROBERT J. HENKE
CHRISTINE REDELMAN
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination of the Parent-Child )
Relationship of I.T., S.T., and W.T., minor children, )
and C.T., Mother, and W.T., Father, )
)
C.T. and W.T., )
)
Appellants-Respondents, )
)
vs. ) No. 54A01-1402-JT-84
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE MONTGOMERY CIRCUIT COURT
The Honorable Harry A. Siamas, Judge
Cause No. 54C01-1308-JT-179, -180, -181

September 4, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
 C.T. (“Mother”) and W.T. (“Father”) (together, “Parents”) appeal the juvenile

court’s order terminating their parental rights to I.T., S.T., and W.T., arguing that the

evidence presented was insufficient to support the termination of their parental rights.

We affirm.

FACTS AND PROCEDURAL HISTORY

Mother and Father have three children together, I.T., S.T., and W.T. (“the

Children”). On April 27, 2012, the Montgomery County Department of Child Services

(“DCS”) received an “immediate response” call regarding two young boys who were found

unattended near the entrance of an apartment complex. Tr. at 97. The boys were later

identified as I.T. and S.T. The neighbors informed DCS that the Children were out all the

time. DCS determined which apartment the Children lived in, and when they went to the

apartment, they encountered Father, who had been asleep. Father was wearing an ankle

bracelet and could not leave the apartment. DCS determined that the Children had been

outside unattended for at least an hour. Mother was at work at that time, but Father was

able to reach her, and she came home.

DCS administered a drug screen to Father, which came back positive for

amphetamine, hydrocodone, and oxycodone. Although Mother did not seem to be culpable

for the Children getting out of the apartment, she did acknowledge to DCS that she had

previously had substance abuse issues, so DCS administered a drug screen to her that came

back positive for amphetamine. Three weeks later, Father’s community corrections was

revoked, and he was sent back to jail.

DCS Family Case Manager (“FCM”) Kristine Roys was assigned to the case in June

2012. At that time, Father was in jail, and Roys only met with him once, which occurred
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in the jail. Mother agreed to an informal adjustment, which included substance abuse

treatment, mental health treatment, and undergoing services to address parenting skills,

housekeeping, budgeting, supervision of the children, and legally taking medication. FCM

Roys visited Mother at the apartment randomly due to her concerns about Mother’s

supervision of the children, cleanliness of the home, and Mother’s sobriety. FCM Roys

made a home visit on June 27, 2012, and when she arrived, Mother’s older daughter, who

is not subject to this case, was watching the Children while Mother was at a neighbor’s

house. The home was very dirty with food ground into the floor and trash “pretty much

everywhere.” Tr. at 91. The apartment was very small, and there was a lot of clutter, which

made it very difficult to move around. Mother returned to the apartment and began to yell

at the Children to clean up the apartment, while she sat on the sofa. Mother admitted to

FCM Roys that Mother used Adderall and agreed to a drug screen. The results of this drug

screen came back positive for amphetamine, hydromorphone, and morphine, with the

levels of hydromorphone and morphine being greater than the lethal level for such drugs.1

After the test results came back, DCS decided to remove the Children because the home

was not safe.2 The Children were placed with Maternal Grandmother and her husband,

where they have remained for the duration of the proceedings. Mother was eventually

evicted from the apartment because she could not afford the rent.

On July 6, 2012, DCS filed a child in need of services (“CHINS”) petition regarding

the Children. On August 23, 2012, the juvenile court adjudicated the Children to be CHINS

1
A toxicologist explained that such levels can be tolerated by individuals who have built up a tolerance to a
drug from taking the drug on a regular basis. Tr. at 32.
2
Mother’s daughter, who was not Father’s child, was also removed from the home. However, that child was
not subject to these termination proceedings and is, therefore, not part of this appeal.
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after Parents both admitted that the Children were CHINS. The juvenile court entered a

dispositional decree, which ordered Father to contact DCS and request services if he is

released from jail. It ordered Mother to, among other things: (1) participate in an intensive

outpatient substance abuse treatment program; (2) participate in medication management

and counseling; (3) participate in home-based casework services to address stability,

finances, organization, and parenting; (4) continue visitation with the Children; (5) provide

random drug screens; and (6) maintain suitable housing.

After Mother was evicted from the apartment, she moved into a one-bedroom

apartment with Paternal Grandmother, whose landlord did not allow children to live there.

DCS would not allow Mother to have visitation with the Children there because of drug

use by Paternal Grandmother. In April 2013, after Father was released from jail, Parents

moved into an apartment in the same complex as Paternal Grandmother. Father was hired

by Kentucky Fried Chicken through his parole, but he never started work there. During

the duration of this case, Mother did not have consistent employment; she cleaned houses

for a short time and had just began employment cleaning a bank at the time of the

termination hearing. Parent’s electricity was shut off on April 9, 2013, and they were

evicted in May 2013. Parents again moved in with Paternal Grandmother. In August 2013,

Father was arrested for violating his parole and was incarcerated up until a week before the

termination hearing. At the time of the termination hearing, Mother was living in a crisis

shelter, and Father was again living with Paternal Grandmother after being released from

incarceration a week prior.

During the pendency of this case, Mother tested positive for various drugs beginning

with the drug screen given to her on April 27, 2012 and again with the screen given to her
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on June 27, 2012. Mother stayed sober for two months after being referred for treatment,

but again tested positive for excessive amounts of oxycodone in September 2012. She

participated in 24 of 27 classes of an advanced outpatient program by the end of October.

However, Mother tested positive for hydrocodone and oxycodone on October 3, November

27, and December 12, 2012 and again on February 12, 2013. On April 11, 2013, Mother

tested positive for amphetamine, methamphetamine, and oxycodone and never returned to

the drug treatment program. She then tested positive for hydrocodone on April 17, 2013

and for oxycodone on May 16, 2013.

Father was release from incarceration on February 12, 2013 and tested positive for

oxycodone that same day. He was referred for a substance abuse assessment by DCS, but

he failed to complete the intake process. Father tested positive for hydrocodone on

February 28, 2013 and for Xanax and oxycodone on March 19, 2013. On several

occasions, Father would refuse to submit to drug screens. Father tested positive for drugs

during a parole drug screen on April 10, 2013 and for hydrocodone during DCS drug screen

on April 17, 2013. After he again tested positive for drugs on June 10, 2013, Father’s

parole officer referred him for a substance abuse evaluation. On June 4, 2013, the juvenile

court ordered that, if Parents had another positive drug screen, DCS would be relieved from

providing services to Parents. Parents drove to an inpatient facility, but became “fed up”

with the facility’s administrative requirements, and left. Tr. at 81.

On June 12, 2013, Parents both tested positive for oxycodone, and Mother tested

also tested positive for THC; DCS stopped providing services to Parents. Mother admitted

that she used heroin in July 2013. Id. at 71. Father participated in an inpatient program

for almost two weeks before he walked out, which resulted in Father being arrested in
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August 2013 for violating his parole. He was incarcerated until one week prior to the

termination hearing.

During the CHINS and termination proceedings, Mother was convicted on

December 2013 of Class A misdemeanor theft, Class B misdemeanor failure to stop, and

Class A misdemeanor criminal trespass and received an aggregate sentence of 844 days of

probation. Mother testified that she had not used drugs since the middle of October 2013,

and at the time of the termination hearing, she was participating in drug treatment as order

by probation. However, on November 2, 2013, while in jail, Mother told a DCS case

manager that Mother had snorted an entire bottle of random pills. Id. at 174-75.

As to participation in services, Father was supposed to meet with his father

engagement case manager every other week after his release from jail in February 2013,

but they only met twice. Father cancelled all of the other meetings. Father did not

accomplish his goals, and he was unsuccessfully discharged from the program on June 23,

2013. Father never completed an intake for home-based case management and home-based

visitation. Mother was referred for home-based case management, and she attended most

of her sessions until she was discontinued from services in June 2013. Mother was never

able to obtain her own housing. She attended eight individual therapy sessions, but her last

session was on January 17, 2013; she was supposed to attend at least twice a month.

Mother had been diagnosed with bi-polar disorder and ADHD, but she did not consistently

take her medications during the CHINS case. She completed a psychological evaluation

and attended medication management, but did not have the money to obtain medication

and never completed the application to receive free medication.

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 As for visitation with the Children, Mother’s attendance was consistent “for the

most part” until the end of the CHINS case when she “missed a few.” Tr. at 136. There

were some issues with visits with both Parents with Parents’ behavior being “suspicious”

during some visits. Id. at 141. A few times, Mother appeared to be under the influence of

something during visits. At one visit, Paternal Grandmother was present and appeared to

be under the influence of something, and she was not allowed to return to visits in that

condition. During one visit, Mother was involved in a physical altercation with her older

daughter in front of the Children, and the police were called. During a visit in April 2013,

Mother failed to change S.T.’s diaper for an hour and a half despite being prompted by the

service provider several times. On April 23, 2013, DCS arrived with the Children for a

visit at Father’s home, and he said “his back was out and he could not interact with the

[C]hildren like he would want to.” Id. However, during the visit, Father disappeared into

the bathroom for about ten minutes, and when he returned, his demeanor had completely

changed, and he was able to interact with the Children on the floor. Father also seemed to

be under the influence of something during other visits with the Children.

On August 13, 2013, DCS filed its petition to terminate the Parents’ parental rights

to the Children. On January 21, 2014, the juvenile court held an evidentiary hearing, which

Father failed to attend even though he had been released from incarceration and notified of

the hearing date. At the time of the hearing, the Children had been placed with Maternal

Grandmother for around eighteen months. During that time, W.T had come out of his shell,

and his grades had improved to the point that he was now on the honor roll. I.T.’s speech

had improved, and he had reduced his behavior of hitting. S.T. was unable to talk when he

was removed from Parents’ care and could only communicate by screaming. At the time
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of the hearing, his communication had improved. The plan for the Children was adoption

by Maternal Grandmother, and she was willing to adopt the Children. The DCS case

manager testified that termination was in the Children’s best interests because of the

Children’s need for permanency. Tr. at 175. The court appointed special advocate

(“CASA”) also recommended that termination was in the best interests of the Children

because the Children needed to be in a stable and permanent home where they could receive

the nurturing and structure they required. Id. at 184-85. On February 2, 2014, the juvenile

court issued its order terminating the Parents’ rights to the Children. Parents now appeal.

Additional facts will be added as necessary.

DISCUSSION AND DECISION

We begin our review by acknowledging that this court has long had a highly

deferential standard of review in cases concerning the termination of parental rights. In re

B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When reviewing a termination

of parental rights case, 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 that are most favorable to the

judgment. Id. Moreover, in deference to the trial court’s unique position to assess the

evidence, we will set aside the court’s judgment terminating a parent-child relationship

only if it is clearly erroneous. In re B.J., 879 N.E.2d at 14.

Here, in terminating Mother’s parental rights to the Children, the juvenile court

entered specific findings and conclusions. When a trial court’s judgment contains specific

findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester

v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we
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determine whether the evidence supports the findings, and second, we determine 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 trial court’s

decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.

Ct. App. 2013), trans. denied.

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 C.G., 954

N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are not absolute and must

be subordinated to the child’s interests when determining the proper disposition of a

petition to terminate parental rights. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013).

In addition, although the right to raise one’s own child should not be terminated solely

because there is a better home available for the child, parental rights may be terminated

when a parent is unable or unwilling to meet his or her parental responsibilities. Id.

Before an involuntary termination of parental rights may occur, the State is required

to allege and prove, 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;

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 (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). The State’s burden of proof for establishing these allegations

in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d

1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if the court finds

that the allegations in a petition described in section 4 of this chapter are true, the court

shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).

Parents argue that the juvenile court erred in terminating their parental rights

because DCS failed to prove the required elements for termination by sufficient evidence.

They specifically contend that DCS did not establish by clear and convincing evidence that

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

termination is in the best interest of the Children.

At the outset, we observe that Indiana Code section 31-35-2-4(b)(2)(B) is written

such that, to properly effectuate the termination of parental rights, the juvenile court need

only find that one of the three requirements of subsection (b)(2)(B) has been established

by clear and convincing evidence. A.D.S., 987 N.E.2d at 1156. In the present case, the

juvenile court found that DCS “has proven by clear and convincing evidence that there is

a reasonable probability that the conditions that resulted in the [Children’s] removal or the

reasons for placement outside the home of the parents will not be remedied.” Appellant’s

App. at 11. The juvenile court made no finding regarding whether there was a probability

that the continuation of the parent-child relationship poses a threat to the well-being of the

child, which is the condition that Parents challenge as not being supported by sufficient

evidence. In order to terminate parental rights, the juvenile court was only required to find
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that one of the conditions under (b)(2)(B) was supported by clear and convincing evidence,

which it did. As Parents have not challenged the evidence supporting the condition found

by the juvenile court to support termination, and the juvenile court was only required to

find one of the three conditions, we need not address Parents’ argument on whether DCS

proved by clear and convincing evidence that the continuation of the parent-child

relationship poses a threat to the children.

Parents next argue that insufficient evidence was presented to prove that termination

is in the best interest of the Children. In determining what is in the best interests of the

child, the trial court is required to look at the totality of the evidence. In re A.K., 924

N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re D.D., 804 N.E.2d at 267), trans.

dismissed. In doing so, the trial court must subordinate the interests of the parents to those

of the child involved. Id. Termination of a parent-child relationship is proper where the

child’s emotional and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d

927, 930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the child

is irreversibly harmed such that his or her physical, mental, and social development is

permanently impaired before terminating the parent-child relationship. Id. Additionally,

a child’s need for permanency is an important consideration in determining the best

interests of a child, and the testimony of the service providers may support a finding that

termination is in the child’s best interests. Id. (citing McBride v. Monroe Cnty. Office of

Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).

Parents argue that DCS should not have terminated their parental rights merely

because of their poverty. However, as the evidence showed, the basis for the juvenile

court’s termination of Parents’ rights was not poverty. The record showed that, at the time
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of the termination hearing, the Children had been removed from the Parents and were in

the custody of Maternal Grandmother for over eighteen months. During that time, the

evidence showed that Parents continued to abuse drugs, failed or refused to engage in

services through DCS, did not have suitable housing for the Children, and were both

incarcerated at different times. Parents had ongoing substance abuse problems, had

multiple positive drug screens, and were not able to maintain sobriety. Mother was evicted

from her apartment shortly after the Children were removed and was unable to secure

suitable housing for the duration of the case; she was also incarcerated for a period of time

as well. Father was incarcerated at the time the Children were removed and remained in

jail for a significant portion of the time the CHINS case was pending. Both Parents failed

to participate in services provided by DCS and were dismissed from services by DCS for

their repeated positive drug screens.

During the time that the Children were in the care of Maternal Grandmother, W.T

had come out of his shell and improved his grades, I.T.’s speech and behavior had

improved, and S.T.’s communication had improved. At the time of the termination

hearing, the plan for the Children was adoption by Maternal Grandmother. The DCS case

manager testified that termination was in the Children’s best interests because of the

Children’s need for permanency. Tr. at 175. The CASA also recommended that

termination was in the best interests of the Children because they needed to be in a stable

and permanent home where they could receive the nurturing and structure they require. Id.

at 184-85. Based on the above, we conclude that sufficient evidence was presented to

prove that termination was in the best interest of the Children.

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 We will reverse a termination of parental rights “only upon a showing of ‘clear

error’--that which leaves us with a definite and firm conviction that a mistake has been

made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting In re Egly, 592

N.E.2d 1232, 1235 (Ind. 1992)). Based on the record before us, we cannot say that the

juvenile court’s termination of Parents’ parental rights to the Children was clearly

erroneous. We, therefore, affirm the juvenile court’s judgment.

Affirmed.

BAKER, J., and ROBB, J., concur.

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