In Re: The Termination of the Parent-Child Relationship of J.B., Jr. (Minor Child) M.D. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 31 2016, 9:15 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
Joann M. Price Gregory F. Zoeller
Merrillville, Indiana Attorney General of Indiana
Donald W. Wruck
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re: The Termination of the August 31, 2016
Parent-Child Relationship of J.B. Court of Appeals Case No.
Jr. (Minor Child); 45A03-1602-JT-403
M.D. (Mother) Appeal from the Lake Superior
Court
Appellant-Respondent,
The Honorable Thomas P.
v. Stefaniak, Judge
Trial Court Cause No.
Indiana Department of Child 45D06-1509-JT-236
Services,
Appellee-Petitioner.

Pyle, Judge.

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 Statement of the Case
[1] M.D. (“Mother”) appeals the termination of the parent-child relationship with

her son, J.B., claiming that the Department of Child Services (“DCS”) failed to

prove by clear and convincing evidence that: (1) there is a reasonable

probability that the conditions that resulted in the child’s removal or the reasons

for placement outside Mother’s home will not be remedied; (2) a continuation

of the parent-child relationship poses a threat to the child’s well-being; (3)

termination of the parent-child relationship is in J.B.’s best interests; and (4)

there is a satisfactory plan for J.B.’s care and treatment. Concluding there is

sufficient evidence to support the trial court’s decision to terminate the parent-

child relationship, we affirm.

[2] We affirm.

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

Facts
[3] In April 2010, Mother gave herself and J.B.’s disabled father (“Father”)

intravenous doses of heroin. When Father turned blue, Mother telephoned

911. Father was taken to the hospital, and Mother was taken to jail after she

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 became involved in a physical altercation with Father’s mother. 1 Seven-month-

old J.B. was placed in foster care. Mother admitted that she had been

“struggling with drug use for some years.” (Tr. 22).

[4] At a hearing a few weeks later, Mother appeared to be suffering from drug

withdrawal symptoms. She agreed to participate in an inpatient drug treatment

program and immediately entered the Transitions Substance Abuse Program.

J.B. was placed with her in the program in July 2010. Mother was

unsuccessfully discharged from the program for violating the rules in December

2010. At that time, J.B. was placed back with his foster family.

[5] The following year, Mother attended substance abuse classes and supervised

visits with J.B. However, in August 2012, Mother again relapsed on heroin and

was referred to a second inpatient drug treatment program. Mother successfully

completed the program and had several visits with J.B. until she relapsed on

heroin again in July 2013. At that time, DCS suspended all of Mother’s

services and visits. Mother then entered a third treatment program. She was

successfully discharged from the program in April 2015 but relapsed after one

week. After contacting a fourth treatment program in Chicago, Mother

discovered that she was pregnant. Her son was born with heroin in his

meconium.

1
Father later died in 2011.

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[6] Thereafter, DCS filed a petition to terminate Mother’s parental relationship

with J.B. At a January 2016 hearing on the petition, the evidence revealed that

Mother had not seen J.B. for two years. J.B.’s therapist testified that J.B. had

worked very hard and had “formed a good secure attachment” to his foster

family. (Tr. 154). Following the hearing, the trial court issued an order

terminating Mother’s parental rights. Mother appeals.

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

her parental rights. The Fourteenth Amendment to the United States

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

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

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

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

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

parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

App. 1999), trans. denied.

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

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

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

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

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

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

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

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

evidence clearly and convincingly supports the findings and the findings clearly

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

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

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.

(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.

(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of
the child.

IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

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

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

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

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

conditions that resulted in J.B.’s removal or the reasons for placement outside

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

child relationship poses a threat to J.B.’s well-being.

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

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

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

discuss only whether there is a reasonable probability that the conditions that

resulted in J.B.’s removal or the reasons for his placement outside Mother’s

home will not be remedied.

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

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

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

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

determine whether there is a reasonable probability that those conditions will

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

fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions and balancing any recent improvements against

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id.

[13] Here, our review of the evidence reveals that J.B. was removed from Mother

because of her heroin use. Six years later, at the time of the termination

hearing, Mother had participated in three treatment programs but was still

using heroin. In addition, she had recently given birth to another son whose

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 meconium had tested positive for heroin. Mother’s habitual heroin use during

the six years that J.B. has been removed from her care is sufficient to show that

the conditions that resulted in J.B.’s removal will not be remedied.

[14] Mother also argues that there is insufficient evidence that the termination was

in J.B.’s best interests. In determining whether termination of parental rights is

in the best interests of a child, the trial court is required to look at the totality of

the circumstances. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). An

historical inability to provide adequate housing, stability, and supervision

coupled with a current inability to provide the same will support a finding that

termination of the parent-child relationship is in the child’s best interests. Castro

v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006),

trans. denied. In addition, a child’s need for permanency is an important

consideration in determining the best interests of a child. In re A.K., 924 N.E.2d

212, 224 (Ind. Ct. App. 2010).

[15] Here, Mother has historically been and is currently unable to provide J.B. with

stability and supervision because of her drug addiction. J.B., however, has

flourished under the care of his foster parents. His therapist testified that he has

developed a strong bond with them. This evidence is sufficient to show that

termination is in J.B.’s best interests.

[16] Last, Mother argues that DCS does not have a satisfactory plan for J.B.’s care

and treatment. This Court has previously explained that the plan for the care

and treatment of the child need not be detailed, so long as it offers a general

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 sense of the direction in which the child will be going after the parent-child

relationship is terminated. In re L.B., 889 N.E.2d 326, 341 (Ind. Ct. App. 2008).

Here, the DCS caseworker testified the plan for the care and treatment of J.B. is

foster parent adoption. This is a satisfactory plan. See In re A.N.J., 690 N.E.2d

at 722.2

[17] We 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.” Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.

[18] Affirmed.

Bradford, J., and Altice, J., concur.

2
Mother states in her appellate brief that foster parents have “separated from one another.” (Mother’s Br.
3). As support for this statement, Mother directs us to page 43 of her appendix, which is a one-page excerpt
from the trial transcript. There, DCS asks J.B.’s therapist if “[f]oster mom and dad are separate.” (App. 43).
The following page of the transcript is not included in the appendix. However, the transcript itself reveals
that DCS was simply asking J.B.’s therapist if foster mom and dad were given separate assessments. There is
no evidence in the record which even suggests that foster parents have separated.

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