In Re the Termination of the Parent-Child Relationship of: M.R. and M.R. J.S. and K.G. v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 15 2017, 9:04 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
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
Brian K. Alsip Curtis T. Hill, Jr.
Alsip Law Office, P.C. Attorney General of Indiana
Franklin, Indiana
Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re the Termination of the December 15, 2017
Parent-Child Relationship of: Court of Appeals Case No.
41A01-1706-JT-1333
M.R. and M.R.
Appeal from the Johnson Circuit
J.S. and K.G., Court
Appellants-Respondents, The Honorable K. Mark Loyd,
Judge
v.
The Honorable Andrew Roesener,
Juvenile Magistrate
The Indiana Department of
Trial Court Cause Nos.
Child Services,
41C01-1701-JT-1
Appellee-Petitioner. 41C01-1701-JT-2

Pyle, Judge.

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

her children Mas.R (“Mas.R”) and Mal.R. (“Mal.R.”) (collectively “the

children”), 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 children’s removal or the

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

continuation of the parent-child relationship poses a threat to the children’s

well-being. Concluding that there is sufficient evidence to support the trial

court’s decision to terminate the parent-child relationship, we affirm the trial

court’s judgment.1

[2] We affirm.

Issue
Whether there is sufficient evidence to support the involuntary
termination of Mother’s parental rights.

Facts
[3] Mother has two children, son Mas.R., who was born in May 2012, and

daughter Mal.R., who was born in February 2014. In August 2015, DCS

received a report of drug use and unclean and unsafe conditions in Mother’s

1
The children’s father voluntarily relinquished his parental rights and is not a party to this appeal.

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 home. DCS Assessor Bradley McCarty (“Assessor McCarty”) went to

Mother’s home to investigate the allegations. Mother was not home, but her

husband answered the door and refused to allow Assessor McCarty to enter.

Assessor McCarty noticed that eighteen-month-old Mal.R. had dog feces on her

foot and was wearing nothing but a diaper that was full of urine and feces.

Later than evening, a neighbor noticed Mal.R. wandering around outside

wearing only a diaper and a pajama top. Mal.R. was cold and shivering, and

her legs and feet were covered with grass and dirt. Assessor McCarty

subsequently returned to Mother’s home with an emergency custody detention

order and removed the children, who were placed with paternal grandmother.

[4] DCS filed a petition alleging that the children were children in need of services

(“CHINS”) because of a lack of supervision, inappropriate housing, and drug

use in the home. In September 2015, Mother was charged with Level 5 felony

dealing in a controlled substance. The following day, she admitted that her

children were CHINS, and the trial court ordered her to maintain appropriate

housing, abstain from drug use, and complete a substance abuse assessment and

follow all recommendations.

[5] In October 2015, Mother was assessed by a substance abuse counselor at Adult

and Child Health. She entered an intensive outpatient treatment program but

was discharged from the program two months later because of numerous

positive drug screens and because she had violated the program’s attendance

policy. In March 2016, Mother was assessed by another substance abuse

counselor and entered another intensive outpatient treatment program. She

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 was discharged from the program two months later because of positive drug

screens. She was referred to inpatient drug and alcohol treatment but failed to

follow the recommendation.

[6] Ten months later, in August 2016, Mother gave birth to a baby who tested

positive for drugs. Following the baby’s birth, Mother attempted to smuggle a

syringe, spoon, and tourniquet into the hospital in her undergarments. The

baby died in October 2016. The following month, Mother entered an inpatient

treatment program. She was discharged after detox and was given follow-up

recommendations, which she failed to follow.

[7] Two months later, in January 2017, DCS filed a petition to terminate Mother’s

parental rights. In February 2017, Mother met with a DCS supervisor and

admitted that she had used heroin five days before the meeting. She requested

additional services from DCS and was referred to Adult and Child Health for

another evaluation that was scheduled for March 2, 2017. Mother, however,

failed to attend the scheduled appointment and was arrested for drug-related

charges on March 7.

[8] Testimony at the April 2017 termination hearing revealed that Mother had used

methadone, controlled substances, such as tramadol and hydrocodone, and

heroin during the course of the CHINS proceedings. Mother admitted at the

hearing that she had used drugs as recently as one to two weeks before the

hearing. The testimony further revealed that Mother had demonstrated

inconsistent attendance at supervised visitation with her children. When she

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 did attend visitation, Mother did not interact appropriately with her children,

and the visitation supervisor suspected that Mother was under the influence of

drugs at some of the visitations. Mother was eventually unsuccessfully

discharged from the supervised visitation program. At the time of the hearing,

Mother had only seen her children twice in the previous four to five months.

In addition, the evidence revealed that Mother had not demonstrated stable

housing during the almost two years that her children had been in foster care.

Specifically, Mother had lived with her mother until Mother stole from her.

Mother had also lived with her husband’s family and was “floating around with

people.” (Tr. 40). Both the DCS family case manager and court-appointed

special advocate testified that termination was in the children’s best interests.

The plan was for paternal grandmother to adopt the children.

[9] Following the hearing, the trial court issued a detailed order terminating

Mother’s parental rights. Mother now appeals the termination.

Decision
[10] 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

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

App. 1999), trans. denied.

[11] 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

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 1229-30.

[12] 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

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 (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.

[13] 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 the children’s removal or the reasons for placement

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

parent-child relationship poses a threat to the children’s well-being.

[14] 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). In re A.K., 924

N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

is a reasonable probability that the conditions that resulted in the children’s

removal or the reasons for their placement outside Mother’s home will not be

remedied.

[15] 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
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 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. Habitual conduct may include

parents’ prior criminal history, drug and alcohol abuse, history of neglect,

failure to provide support, and a lack of adequate housing and employment.

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).

The trial court may also consider services offered to the parent by DCS and the

parent’s response to those services as evidence of whether conditions will be

remedied. Id. Requiring trial courts to give due regard to changed conditions

does not preclude them from finding that a parent’s past behavior is the best

predictor of her future behavior. E.M., 4 N.E.3d at 643.

[16] Here, the children were removed from Mother’s home because of a lack of

supervision, inappropriate housing, and drug use in the home. Our review of

the evidence reveals that at the time of the termination hearing, Mother had

been unsuccessfully discharged from the supervised visitation program because

she had demonstrated inconsistent attendance visiting her children. The

visitation supervisor had noticed that Mother did not interact appropriately

with her children. The supervisor also suspected that Mother was under the

influence of drugs at some of the visitations. Mother had only seen her children

twice in the previous four to five months. Mother had not found appropriate

housing during the course of the CHINS proceedings and she had continued to

use drugs. Specifically, the evidence reveals that Mother had used

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 methamphetamine, controlled substances, and heroin during the course of the

proceedings. She had been unsuccessfully discharged from two intensive

outpatient programs because of positive drug screens and for violating the

attendance policy of one of the programs. Mother admitted at the hearing that

she had used drugs one to two weeks before the termination hearing. This

evidence supports the trial court’s conclusion that there is a reasonable

probability that the conditions that resulted in the children’s removal or the

reasons for placement outside Mother’s home will not be remedied. There is

sufficient evidence to support the involuntary termination of Mother’s parental

rights.

[17] Affirmed.

Kirsch, J., and Bailey, J., concur.

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