In the Matter of the Termination of the Parent-Child Relationship of N.B. (Minor Child) G.B. (Father) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 23 2020, 9:21 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel G. Foote Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana

Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination July 23, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of N.B. (Minor Child); 19A-JT-2945
G.B. (Father), Appeal from the Marion Superior
Court
Appellant-Respondent,
The Honorable Marilyn A.
v. Moores, Judge
The Honorable Scott B. Stowers,
Indiana Department of Child Magistrate
Services, Trial Court Cause No.
49D09-1904-JT-439
Appellee-Petitioner,

and

Child Advocates, Inc.,

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 Appellee-Guardian Ad Litem.

Najam, Judge.

Statement of the Case
[1] G.B. (“Father”) appeals the trial court’s termination of his parental rights over

his minor child N.B. (“Child”). Father presents a single dispositive issue for

our review, namely, whether the Indiana Department of Child Services

(“DCS”) presented sufficient evidence to support the termination of his parental

rights. We affirm.

Facts and Procedural History
[2] Father and M.R. (“Mother”) 1 (collectively, “Parents”) are Child’s parents.

When Child was born on May 20, 2017, a test on the umbilical cord blood was

positive for cocaine. Accordingly, DCS filed a petition alleging that Child was

a child in need of services (“CHINS”) and removed Child from Parents’ care.

1
Mother’s parental rights over Child have also been terminated, but Mother does not participate in this
appeal.

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 At an ensuing factfinding hearing, Mother admitted that Child was a CHINS,

and Father waived his right to a factfinding hearing.

[3] After the juvenile court found that Child was a CHINS, the court entered a

dispositional order. The court ordered Father to participate in a home-based

case management program and follow all recommendations and to submit to

random drug and alcohol screens. Beginning at the end of 2017 through spring

of 2018, Father told his case manager that “he did not want to engage in

services.” Tr. Vol. 2 at 79. Accordingly, in September 2018, the juvenile court

entered a modified dispositional order, which required Father to engage in

home-based therapy and to complete a substance abuse assessment and follow

all treatment recommendations. Again, Father failed to comply.

[4] In April 2019, DCS filed petitions to terminate Father’s and Mother’s parental

rights over Child. Following a hearing, the trial court granted the termination

petitions on November 19, 2019. In support of its order, the trial court entered

the following relevant findings:

10. The [C]hild remained in the hospital for approximately two
(2) months following her birth. During that time, she was very
small and in an incubator.

11. Following her discharge from the hospital, [Child] was
placed in relative care with her paternal grandmother.

12. The child has been placed in foster care with [C.B.] and
[R.R.] since January 5, 2018.

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 13. When the child first was placed in foster care, she was very
small and had asthma and respiratory issues, as well as [a] runny
nose and rashes.

14. The foster parents have taken the child to regular medical
appointments.

15. When [Child] was first placed with her foster parents, she
was on a breathing machine three times per day to assist with her
asthma. She . . . no longer requires a breathing machine.

16. The child is happy and doing well in foster care. She refers
to her foster parents as “mom and dad.” This is a pre-adoptive
placement.

***

18. [Father] has been consistent with parenting time and he sees
the child twice per week.

***

25. Teresa Marshall of Haven Focused was referred to provide
home based case management for [Father] in August 2019.

26. [Father] was not employed when he began working with Ms.
Marshall. He has since obtained employment.

27. [Father] has obtained stable housing with working utilities,
although it is too small to accommodate the child.

28. [Father] is currently exercising parenting time with the child,
and such sessions are going well.

29. [Father] has attended . . . nearly all hearings in [Child’s]
CHINS case over the past two years. . . .

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 30. [Father] has missed numerous drug screens.

31. The [family case manager (“FCM”)] has made appropriate
referrals to assist the parents in complying with court ordered
services.

32. Home based case management was closed out in spring 2018
when [Father] stated that he didn’t want to engage.

33. After [Father] expressed a desire to re-engage, the FCM re-
referred home based case management to [Father] in May 2018.

***

36. Weldon Koech of Haven Focused was referred to provide
home based therapy for [Father] in September 2018.

37. [Father] disclosed to Mr. Koech that he struggled with
marijuana usage and that he began using daily following his
involvement in a car accident.

38. [Father] agreed to stop smoking marijuana and promised
Mr. Koech that he would submit clean screens. However, he did
not follow through.

39. Mr. Koech recommended that [Father] complete a “dual
diagnosis” program at Gallahue in January 2019, to address his
marijuana usage.

40. In March 2019, [Father] went to an intake session at
Gallahue and Mr. Koech discharged [Father] from home based
therapy because he needed a higher level of care, specifically,
dual diagnosis.

***

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 42. [Father] agreed to complete a substance abuse assessment.
However, he failed to follow through.

43. The FCM repeatedly discussed with [Father] the importance
of completing services and submitting clean drug screens.

44. Despite these reminders and admonishments, [Father]
continued to miss drug screens and submit[ted] positive screens,
including a positive screen on the day of the September 25,
2019[,] trial setting.

45. [Father]’s treatment team has recommended that [Father]
progress to unsupervised parenting time with the child upon the
submission of three (3) consecutive clean screens. [Father] has
been unable to do so.

***

48. Jacqueline Lentz of Community Health Network was
referred to provide therapy for [Father] and conducted an intake
assessment on April 22, 2019.

49. [Father] admitted to Ms. Lentz daily marijuana usage since
he was fifteen years old.

50. [Father] attributed his marijuana use to chronic pain from a
car accident.

51. [Father] was diagnosed with Major Depressive Disorder and
Cannabis Disorder.

52. [Father] had been prescribed Zoloft for his depression, but
was not taking the medication at the time of his intake with Ms.
Lentz.

53. Ms. Lentz recommended Dual Diagnosis Group to treat
mental health and substance abuse usage.

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 54. [Father] was to appear at the group sessions three times per
week and to see Ms. Lentz monthly.

55. [Father] never appeared at the Dual Diagnosis Group, and
on May 6, 2019, he was unsuccessfully discharged for non-
participation.

56. Jordan Snoddy of Families First provided intensive
outpatient (“IOP”) group treatment to [Father] beginning in
November 2018.

57. Ms. Snoddy’s IOP program consisted of 24 group sessions as
well as weekly drug screens.

58. [Father] attended Ms. Snoddy’s program regularly.
However, he had nine (9) absences, seven (7) of which were
unexcused.

59. Ms. Snoddy’s IOP program had a policy in which three (3)
absences, either excused or unexcused, would result in discharge
from the program.

60. Ms. Snoddy also recommended that [Father] participate in a
dual diagnosis program.

61. [Father] engaged with Ms. Snoddy initially. However, as
time went on, his engagement decreased and he became bored
with the program.

62. [Father] was discharged from Ms. Snoddy’s IOP program in
March 2019 without completing the IOP program or the
aftercare program.

***

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 76. Debbrena Curtis of Haven Focused has . . . provided home
based case management and supervised parenting time to
[Father] for approximately 18 months, until the summer of 2019.

77. Although [Father] was appropriate with the child during his
time working with Ms. Curtis, he never progressed to
unsupervised parenting time.

78. The child had been removed from her parents’ care and
custody for at least six (6) months pursuant to a dispositional
decree prior to this Termination Action being filed on April 6,
2019.

***

81. There is a reasonable probability that the conditions that
resulted in the child’s removal and continued placement outside
of the home will not be remedied by her parents. [Mother] and
[Father] have had over two years to put forth an effort and have
not done so. . . . [Father] continues to use marijuana, and he did
not successfully complete substance abuse treatment. He also
failed to attend dual diagnosis assessment. He was advised that
he would progress to unsupervised parenting time upon the
submission of three consecutive drug screens and was unable to
comply.

82. Continuation of the parent-child relationship poses a threat
to the child’s well-being in that it would serve as a barrier for her
obtaining permanency through an adoption when her parents
are unable and unwilling to provide permanency and parent.
The child is thriving in her current placement.

83. Termination of the parent-child relationship[s] is in the
child’s best interests. Termination would allow her to be adopted
into a stable and permanent home where her needs will be safely
met.

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 84. There exists a satisfactory plan for the future care and
treatment of the child, that being adoption.

Appellant’s App. Vol. 2 at 17-20. Thus, the juvenile court terminated Father’s

parental rights over Child. This appeal ensued.

Discussion and Decision
Standard of Review

[5] Father contends that the trial court erred when it terminated his parental rights.

We begin our review of this issue by acknowledging that “[t]he traditional right

of parents to establish a home and raise their children is protected by the

Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

denied. However, a trial court must subordinate the interests of the parents to

those of the child when evaluating the circumstances surrounding a

termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

proper where a child’s emotional and physical development is threatened. Id.

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. at 836.

[6] As relevant here, before an involuntary termination of parental rights can occur

in Indiana, DCS is required to allege and prove:

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 (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[; or]

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

***

(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) (2020). DCS’s “burden of proof in termination of

parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

I.C. § 31-37-14-2).

[7] When reviewing a termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

Fam. & Child. (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.

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 Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

Ct. App. 1999), trans. denied.

[8] Here, in terminating Father’s parental rights, the trial court entered specific

findings of fact and conclusions thereon. When a trial court’s judgment

contains special findings and conclusions, we apply a two-tiered standard of

review. Bester v. Lake Cty. Off. of Fam. & Child., 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. “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.

In re L.S., 717 N.E.2d at 208.

[9] On appeal, Father contends that the juvenile court’s finding that his home is too

small to accommodate Child is unsupported by the evidence, and he asserts that

“Father’s use of THC” does not support termination of his parental rights.

Appellant’s Br. at 20. Father also contends that the trial court erred when it

concluded that: (1) the conditions that resulted in Child’s removal and the

reasons for her placement outside of his home will not be remedied; (2) there is

a reasonable probability that the continuation of the parent-child relationship

poses a threat to the well-being of Child; and (3) termination is in Child’s best

interests. However, as Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

disjunctive, we need not address the issue of whether there is a reasonable

probability that the continuation of the parent-child relationship poses a threat

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 to the well-being of Child. We otherwise address each of Father’s contentions

in turn.

Size of Father’s Home

[10] Father first contends that the juvenile court erred when it found that his home is

“‘too small to accommodate’” Child. Appellant’s Br. at 19 (quoting

Appellant’s App. Vol. 2 at 92). In support, Father directs us to the testimony of

three witnesses stating that his one-bedroom apartment was appropriate for him

and Child. However, as the State points out, Theresa Marshall, Father’s case

manager, testified that Father “wanted to look for an apartment with more

bedroom[s].” Tr. Vol. 2 at 58. Thus, the State maintains that the juvenile court

was entitled to conclude that Father’s one-bedroom apartment was too small

for Father and Child. In any event, even assuming the court erred when it so

found, any error was harmless. As this Court has held, where an erroneous

finding is not the “sole support for any conclusion of law necessary to sustain

the judgment,” it is “harmless surplusage” and not reversible error. Karma W.

v. Marion Cty. Dep’t of Child Servs. (In re B.J.), 879 N.E.2d 7, 20 (Ind. Ct. App.

2008), trans. denied. Here, there is no question, and Father does not allege,

that the court’s finding that his apartment was too small is not the sole support

for any conclusion of law. Thus, any error was harmless.

Father’s Use of Marijuana

[11] Father next contends that, because DCS did not present evidence “to show how

Father’s use of THC has adversely affected [Child] or his ability to parent,”

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 Father’s use of marijuana does not support termination of his parental rights.

Appellant’s Br. at 28 (emphasis original). Father maintains that, to the

contrary, the undisputed evidence shows that Father’s marijuana use had no

impact on Child. However, Father does not challenge any of the court’s

findings with respect to his marijuana use. As the State points out, Father’s

contention on this issue is merely a request that we reweigh the evidence, which

we cannot do.

[12] Father attempts to analogize his use of marijuana to that of parents in cases

where our courts have held that proof of the occasional use of marijuana

without any showing that a child is endangered thereby is not grounds for a

CHINS determination. See Appellant’s Br. at 27. But Father ignores the “dual

diagnosis” he received, which means that he has “mental health and substance[-

]related issues” that are connected. Tr. Vol. 2 at 122. And “[i]ndividuals

diagnosed with [a dual diagnosis] face greater consequences from substance

abuse compared to those patients diagnosed with only a mental illness[.]”

Kathryn Hryb et al., Letter to the Editor, A Call for Standardized Definition of Dual

Diagnosis, Psychiatry, Sept. 2007, at 15-16, https://www.ncbi.nlm.nih.gov/pmc

/articles/PMC2880934/pdf/PE_4_9_15.pdf. In other words, where, as here,

there is evidence of comorbidity, Father’s marijuana use is not insignificant and

not analogous to that of the parents in the cases he cites. Father has not

demonstrated any error on this issue.

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 Reasons for Child’s Placement Outside of Father’s Home

[13] Father contends that DCS did not present sufficient evidence to prove that the

reasons for Child’s placement outside of his home will not be remedied. This

court has clarified that, given the wording of the statute, it is not just the basis

for the initial removal of the child that may be considered for purposes of

determining whether a parent’s rights should be terminated, but also any basis

resulting in the continued placement outside of a parent’s home. Inkenhaus v.

Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct.

App. 2005), trans. denied. Here, the trial court properly considered the

conditions leading to the continued placement outside of Father’s home,

including Father’s failure to address either his substance abuse or mental health

issues. The court observed that Father did not participate in the mental health

services that were recommended following his psychological evaluation.

[14] We hold that the evidence supports the trial court’s findings and conclusion.

To determine whether there is a reasonable probability that the reasons for

Child’s continued placement outside of Father’s home will not be remedied, the

trial court should judge Father’s fitness to care for Child at the time of the

termination hearing, taking into consideration evidence of changed conditions.

See E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014).

However, the court must also “evaluate the parent’s habitual patterns of

conduct to determine the probability of future neglect or deprivation of the

child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct.

App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

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 have properly considered 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. Id. Moreover, DCS is not required to rule

out all possibilities of change; rather, it need establish only that there is a

reasonable probability the parent’s behavior will not change. Id.

[15] The trial court found, and the evidence supports, that: Father has a history of

substance abuse and mental illness; Father does not take medication prescribed

for his depression; Father “never appeared at the Dual Diagnosis Group” that

was recommended to treat his substance abuse and mental illness and was

“discharged for non-participation”; and Father needed to show only three

consecutive clean drug screens in order to transition to unsupervised parenting

time with Child, but he was unable to do that. Appellant’s App. Vol. 2 at 94.

Father’s argument on appeal is simply an invitation for this Court to reweigh

the evidence and judge the credibility of the witnesses, which we cannot do.

Based on the totality of the circumstances, we hold that the trial court’s findings

support its conclusion that the conditions that resulted in Child’s removal and

the reasons for her placement outside of his home will not be remedied.

Best Interests

[16] Father also contends that the trial court erred when it concluded that

termination of his parental rights is in Child’s best interests. In determining

what is in a child’s best interests, a juvenile court is required to look beyond the

factors identified by DCS and consider the totality of the evidence. A.S. v. Ind.

Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A
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 parent’s historical inability to provide “adequate housing, stability, and

supervision,” in addition to the parent’s current inability to do so, supports

finding termination of parental rights is in the best interests of the child. Id.

[17] When making its decision, the court must subordinate the interests of the

parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),

906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a

child is irreversibly harmed before terminating the parent-child relationship.”

Id. Moreover, this Court has previously held that recommendations of the

family case manager and court-appointed advocate to terminate parental rights,

coupled with evidence that the conditions resulting in removal will not be

remedied, are sufficient to show by clear and convincing evidence that

termination is in the child’s best interests. Id.

[18] Father asserts that, as one witness testified, “[g]iven more time, . . . Father not

only could complete any remaining services, but that he should be given more

time to do so.” Appellant’s Br. at 33 (emphases original). But Father ignores

the fact that he had two years from the time DCS filed the CHINS petition until

the final hearing to comply with services. He gives no explanation why two

years was not enough time to be assessed and participate in appropriate

treatment for his substance abuse and mental illness.

[19] As the trial court’s findings demonstrate, Father has not shown that he is

capable of parenting Child. Other than his substantial compliance with

supervised visits with Child, Father did not complete the court-ordered services.

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 Child has lived with her foster parents since January 2018, which is a pre-

adoptive home, and she is bonded and thriving. Both the FCM and the CASA

recommended termination of Father’s parental rights. Given the totality of the

evidence, Father cannot show that the trial court erred when it concluded that

termination of his rights was in Child’s best interests.

[20] Affirmed.

Bradford, C.J., and Mathias, J., concur.

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