Court of Appeals of Indiana | Memorandum Decision 53A05

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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.
A TTORNEY FOR A PPELLANT N.E. Kara A. Hancuff Monroe County Public Defender Bloomington, Indiana A TTORNEY FOR A PPELLANT M.C. Karen E. Wrenbeck Monroe County Public Defender Bloomington, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General Robert J. Henke Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

In the Matter of the Termination of the Parental Rights of: M

- l.C., M

- n.C. & M.E.C. (Minor Children) a nd N.E. (Mother) and M.C. (Father) Appellant s - Respondents

, v. 

### Indiana Department of Child Services , Appellee

- Petitioner January 11, 2018 Court of Appeals Ca se No. 53A05

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- 1264 Appeal from the Monroe Circuit Court VII The Honorable Stephen Galvin, Judge Trial Court Cause No s. 53C07

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- 519 53C07

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Vaidik , Chief Judge .Court of Appeals of Indiana | Memorandum Decision 53A05

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# Case Summary

[1] M.C. (“Father”) and N.E. (“Mother”) appeal the termination of their parental rights to their three children . Finding no error, we affirm.



# Facts and Procedural History

[2] The undisputed facts a re set forth in the trial court’s order. 1 Mother and Father are the parents to three children : twins born in June 2013 and another child born in November 2014 (collective ly “the children ” ). On March 7, 2015, marijuana smo ke was detected coming from Mother’s apartment in Bloomington . Officers searched the apartment and found marijuana, crack cocaine, and eighty

- eight Lortab pills in the bedroom where Mother and the

c hildr en slept. The c hildren could access the marijuana. Upon further search of the apartment , officers found two loaded guns and stolen lottery tickets. Mother was arrested and claim ed that the lottery tickets belonged to Father. When questioned by officers , Father admitted that he had been at Mother’s home the day before she was arrested. Father also submitted to a drug screen, which was positive for marijuana.

[3] The c hildren were removed from their parents’ care at the time of Mother’s
arrest . Two of the children were suffering from coughs, and one child was

1 Because neither Mother n or Father challenge the trial court’s findings of fact, w e accept them as true. See Maldem v. Arko , 592 N.E.2d 686 (Ind. 1992) (“Because Maldem does not challenge the findings of the trial court, they must be accepted as true.”).Court of Appeals of Indiana | Memorandum Decision 53A05

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recovering from pneumonia. Department of Child Services ( DCS ) filed children in need of services (CHINS) petitions , and t he children were adjudicated CHINS on May 7 and later placed in a foster

- care home, where they have remained for over two years. In June 2015 , a disposition al hearing was held for both Mother and Father. Both parents were order ed to: maintain weekly contact with the DCS family case manager; participate in home

- based

c ounseling; complete a substance

- abuse assessment and complete all treatment recommendations; submit to random drug and alcohol screens; and attend all scheduled visits with the c hildren.

[4] Amanda Kelly, a home

- based family case worker with Ireland H ome Bas ed Services, began working with Mother and Father in November 2015. She supervised visits between the parents and the c hildren and offered parenting instruction to Mother and Father. There were many issues with the visits: Mother had difficulty supervisi ng the c hildren by herself; Mother did not foll ow through on disciplining the c hildren; Kelly had to intervene to ensure the

c hildren’s safety; Father was routinely late to visits; and the parents failed to bring adequate supplies, such as diapers and wipe s.

[5] Debra Hoesman, a mental

- health practitioner, began counseling with Mother in February 2016. Hoesman completed a substance

- abuse assessment on Mother in May 2016 and diagnosed Mother with cannabis dependence an d major depressive disorder. Hoesman rec ommended that Mother have weekly therapy sessions. Mother attended only ten sessions , with her last appointment in June 2016

. During this time, Mother was also inconsistent in submitting to drugCourt of Appeals of Indiana | Memorandum Decision 53A05

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screens, but when she did submit, she repeatedly failed. M other frequently tested positive for marijuana and twice tested positive for heroin. Around the time Mother stopped seeing Hoesman, the DCS case manager noticed an increase in Mother’s marijuana use. Mother told the case manager that she used marijuana a s a coping mechanism for stress.

[6] Meanwhile , Father continued his involvement with illegal drugs and was arrested in June 2016 at Mother’s apartment

. O fficers found cocaine, forty grams of heroin, and a stolen handgun. Father was convicted in April 2017 o f one count of dealing in a narcotic drug and sentenced to eighteen years in the Indiana Department of Correction (IDOC) , with six years suspended. He will be inc arcerated for approximately eight more years. 2 Before his arrest, Father did not engage wi th DCS or its service providers , telling them that he was not interested in services , that he “was a good father,” that he had other things to do, and that he “ was living the life and that was the way he had to make a living

. ” Appellants’ App. Vol II p. 2 7 3 ; Tr. Vol. II p. 15

. Father also told the

case manager that he did not have a subs tance
- abuse problem, but he never submitted to a drug screen after the CHINS adjudications.

2 The trial court’s findings state the Father will be released in five years. However, IDOC’s offender search lists Father’s projected release date as January 2026. https://www.in.gov/apps/indcorrection/ofs/ ofs (last visited 01/04/2018 ). 3 Mother and Fat her appealed separately but filed only one appendix. In his brief, Father stated that he would not “be filing an Appendix, as it would be identical to Mother’s and thus unduly duplicative.” Father’s Appellant’s Br. p. 4 (citing Ind. Appellate Rule 50(E)) . Accordingly, we attribute the single appendix to both parties.Court of Appeals of Indiana | Memorandum Decision 53A05

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[7] Shortly after Father’s arrest, Mother moved to Michigan but did not tell the DCS case manager that she was moving. Mother claimed that she moved because she was going to be evicted and needed the support of family. But Mother had two sisters, two aunts, and two uncles living in Bloomington when she moved. After moving, Mother di d not request that DCS arrange for her services to be transferred to Michigan. Mother also failed to maintain weekl y contact with the case manager.

[8] Mother last visited the c hildren on June 15, 2016. She never travel ed from Michigan to Indiana to see th e c hildren. Mother was supposed to see the

c hildren in November 2016 but did not make the trip. The c hildren were “extremely disappointed.” Id. at 30. Mother later requested to have video contact with the c hildren, but her request was denied because it had been approximately seven months since she had seen the c hildren.

[9] In August 2016, DCS filed it s termination petitions. A hea ring on the petitions was held i n February 2017

. During the hearing, the DCS case manager and Court Appointed Special Advoca te (CASA) for the children testified that termination of Mother’s and Father’s parental rights was in the children’s best interests. See Tr. Vol. II pp. 63

- 64, 81. The trial court concluded : that the

c hildren had been removed from their parents for at least six mont hs under a dispositional decree; that there is a reasonable probability that the conditions that resulted in the removal of the c hildren or the reasons for their continued placement outside of the home would not be remedied; that the continua tion of the parent

- child relationship posed a thre at to the c hildren’s well

- being; thatCourt of Appeals of Indiana | Memorandum Decision 53A05

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termination was in the c hildren’s best interests ; and that a satisfactory plan for the care and treatment of the c hildren was in place

— adoption. The trial court termin ated Mother ’s and Father’s parental rights.

[10] Mother and Father appeal

.



# Discussion and Decision

[11] Mother and Father filed separate briefs, and where possible, we address their arguments as one. B oth parents argue that the trial court erred when it terminated their parental rig hts. When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. In re K.T.K. , 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consi der only the evidence and reasonable inferences that are most favorable to the judgment of the trial court. Id. When a trial court has entered findings of fact and conclusions, we will not set aside the trial court’s findings or judgment unless clearly e rroneous. Id. To determine whether a judgment terminating parental rights is clearly erroneous, we review whether the evidence supports the trial court’s findings and whether the findings support the judgment. In re V.A. , 51 N.E.3d 1140, 1143 (Ind. 2016 ).

[12] A petition to terminate parental rights must allege, 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 forCourt of Appeals of Indiana | Memorandum Decision 53A05

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- 1264 | January 11, 2018 Page 7 of 11 placement outside th e 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 co nvincing evidence. In re K.T.K. , 989 N.E.2d at 1231. If the court finds that the allegations in a petition are true, the court shall terminate the parent
- child relationship. Ind. Code § 31

- 35

- 2

- 8(a).

[13] Mother and Father both contend that the evidence is insufficient to support the trial court’s conclusion that there is a reasonable probability that the c onditions that resulted in the c hildren’s removal or continued placement outside the home would not be remedied. When a parent chal lenges this conclusion, w e engage in a two

- step analysis. “ First, we must ascertain what conditions led to their placement and retent ion in foster care. Second, we determine whether there is a reasonable probability that those conditions will not be reme died.” K.T.K. , 989 N.E.2d at 1231. “The trial court must consider a parent’s habitual patternCourt of Appeals of Indiana | Memorandum Decision 53A05

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of conduct to determine whether there is a substantial probability of future neglect or deprivation.” Id.

[14] T he children were removed from the home due to Moth er’s and Father’s drug use and the parents’ inability to provide an adequate home or proper care for the ir children

. T hese conditions did not change over the course of the CHINS proceedings for either parent

. Regarding Mother, she repeatedly failed her d rug screens, testing positive for marijuana and heroin. Mother contends that she was drug free after moving to Mich igan. She stated that she was working at Walmart, which requires all potential employees to submit to drug tests. But the trial court reje cted this argument because Mother worked for Walmart when she lived in Bloomington and repeatedly tested positive for marijuana. Appellant’s App. Vol. II p. 29. Mother’s argument is a request for us to reweigh the evidence, which we will not do. K.T.K. , 989 N.E.2d at 1229

. Mother also struggled to care for the children during her supervised visits

. She failed to follow through on discipline, and on at least one occasion Kelly had to intervene to keep the children safe. Furthermore, Mother also stopped visiting the children after moving to Michigan and has not seen them since June 20 16. 4

4 Mother also argues that DCS ignored her requests to have services transferred to Michigan, and thus, the trial court erred when it terminated her parental rights. But the trial court’s findings of fact explicitly state that Mother “d id not request that DCS arrange for her to participate in services in Michigan. DCS could have arranged for drug screens and other services in Michigan.” Appellant’s App. Vol. II p. 28. Mother’s argument i s nothing more than a request for us to reweigh the evidence, which we will not do. K.T.K. , 989 N.E.2d at 1229

.Court of Appeals of Indiana | Memorandum Decision 53A05

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[15] As for Father, he contends that the State relied solely on his incarceration to support its petition for termination. Father compares his situation to that of the father in K.E. v. Indiana Department of Child Services , 39 N.E.3d 641 (Ind. 2015). In K.E. , the father was incarcerated before his child was born and did “everything he had been asked while incarcerated, active ly participated in substance abuse programs, established regular visitation with K.E., and spoke to K.E. every night on the phone.” Id. at 645 . Our Supreme Court overturned the termination of father’ s parental rights. Here, Father’s situation is readily distinguishable from K.E

. After the CHINS adjudications, Father refused to engage with DCS or any of its service providers

. He told them that he was not interested in services, that he “was a good father,” that he had other things to do, and that he “wa s living the life and that was the way he had to make a living

. ” Appellants’ App. Vol II p. 27; Tr. Vol. II p. 15

. Father was eventually incar cerated for selling drugs

. Father has not participated in any services since his incarceration. There is s uffi cient evidence to show that neither Mother nor Father prioritize d the needs of the children above their own. The trial court did not err when it concluded that there is a reasonable probability that the conditions that resulted in the children’s removal o r the reasons for their placement outside the home will not be remedied. 5

5 Father also argues that there is insufficient evidence to support the trial court’s conclusion that there is a reasonable probability that continuation of the parent

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

being. Indiana Code section 31

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- 2

- 4(b)(2)(B) is written in the disjunctive and requires clear and convincing evidence of only one of the circumstances listed in subsecti on (B). See In re I.A. , 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we conclude that there is sufficient evidence to support the trial court’s conclusionCourt of Appeals of Indiana | Memorandum Decision 53A05

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[16] Additionally, Mother and Father both challenge the court’s conclusion that termination was in the children’s best interests

. To determine what is in the children’s best interests, the trial 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 trial court must subordinate the interests of the parent to those of the chil dren. Id. The court need not wait until the child ren are irreversibly harmed before terminating the parent

- child relationship. Id. We have previously held that recommendations by both the DCS case manager and CASA to terminate parental rights, in addit ion to evidence that the conditions resulting in removal will not be remedied, is clear and convincing evidence that termination is in the best interests of the children. Id. at 1158

- 59. Here, b oth the DCS case manager and the CASA testifi ed that termina tion was in the c hildren’s best interests. See Tr. Vol. II pp. 63

- 64, 81

. And, a s already discussed, there is sufficient evidence to support the conclusion that the con ditions resulting in removal or placement outside of the home will not be remedied. Furthermore, the children have spent most of their lives in foster care because the parents are incapable of providing a safe, stable home free of illegal drug use. T he children , however, were excelling in their foster home, which was pre

- adoptive. The c ourt found that the children

were “ smart , happy, [and] well

- adjusted ” and that adoption was a satisfactory

that there is a reasonable probability that the conditions that resulted in the child’s remova l or the reasons for placement outside the home will not be remedied , we do not address this argument.Court of Appeals of Indiana | Memorandum Decision 53A05

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plan for them. Appellant’s App. Vol. II p. 31. Accordingly, t he trial court did not err when it concluded that termination was in the c hildren’s be st interests.

[17] Affirmed

. May, J., and Altice, J. concur

.