MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any
                                                                           May 09 2018, 9:15 am
court except for the purpose of establishing
the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Melinda K. Jackman-Hanlin                                Curtis T. Hill, Jr.
Plainfield, 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 Involuntary                         May 9, 2018
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of: M.S., Je.S., and                        32A01-1711-JT-2582
Ja.S. (Minor Children)                                   Appeal from the Hendricks
                                                         Superior Court
and                                                      The Honorable Karen M. Love,
                                                         Judge
C.I. (Mother),                                           Trial Court Cause Nos.
Appellant-Respondent,                                    32D03-1611-JT-17,
                                                         32D03-1611-JT-18,
        v.                                               32D03-1611-JT-20

The Indiana Department of
Child Services,
Appellee-Petitioner.


Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018                  Page 1 of 12
      Bradford, Judge.



                                               Case Summary
[1]   C.I. (“Mother”) appeals the juvenile court’s order terminating her parental

      rights to M.S., Je.S., and Ja.S. (“the Children”). The Indiana Department of

      Child Services (“DCS”) became involved in the Children’s lives after receiving

      reports that maternal grandmother, their then-legal guardian, was unable to

      properly care for them. The Children were subsequently determined to be

      children in need of services (“CHINS”) and Mother was ordered to complete

      certain services. Mother, however, failed to successfully complete the court-

      ordered services.


[2]   DCS filed a petition seeking the termination of Mother’s parental rights to the

      Children on November 17, 2016. Following a three-day evidentiary hearing,

      the juvenile court issued an order granting DCS’s petition. On appeal, Mother

      contends that DCS did not provide sufficient evidence to support the

      termination of her parental rights. Because we disagree, we affirm.



                                Facts and Procedural History
[3]   Mother and Jo.S. (“Father”) are the parents of the Children. 1 M.S. was born on

      March 7, 2009; Je.S. was born on March 3, 2005; and Ja.S. was born on




      1
          Father does not challenge the termination of his parental rights to the Children.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018      Page 2 of 12
      February 19, 2004. At some point in 2009, the Children were removed from

      their parents’ care and maternal grandmother was named their legal guardian.

      DCS became involved with the Children in August of 2015, after receiving

      reports that maternal grandmother could not properly supervise the Children

      due to her poor health and the Children’s behavioral issues. At the time,

      Mother’s whereabouts were unknown and Father was incarcerated. The

      Children were removed from maternal grandmother’s care and placed together

      in foster care. They were subsequently found to be CHINS. As a result of the

      CHINS finding, Mother was ordered to complete a number of services. Mother

      failed to successfully complete these services.


[4]   On November 17, 2016, DCS filed a petition seeking the termination of

      Mother’s parental rights to the Children. The juvenile court conducted a three-

      day evidentiary hearing on DCS’s petition on February 16 and 17, 2017, and

      May 10, 2017. DCS presented evidence indicating that Mother had not made

      significant progress towards reunification and continued to struggle with

      sobriety. Numerous service providers testified that Mother’s failure to maintain

      sobriety negatively impacted her ability to care for the Children. DCS also

      presented evidence that although Mother had secured potentially adequate

      housing at one point during the proceedings, as of the date of the final hearing,

      she no longer lived at that residence. Instead, she was living at a residence

      deemed inappropriate for the Children.


[5]   DCS also presented evidence that the Children were currently placed in a

      secure and stable home environment and had “made huge leaps in their

      Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018   Page 3 of 12
      behaviors” while in the care of their foster parents. Tr. Vol. III, p. 92. It

      additionally presented evidence that the termination of Mother’s parental rights

      was in the Children’s best interests, and its plan was for the Children’s current

      foster family to adopt the Children.


[6]   Following the conclusion of the hearing, the juvenile court took the matter

      under advisement. On October 11, 2017, the juvenile court issued an order

      terminating Mother’s parental rights to the Children.



                                 Discussion and Decision
[7]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of a parent to establish a home and raise her children. Bester v.

      Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005).

      However, although parental rights are of a constitutional dimension, the law

      allows for the termination of those rights when a parent is unable or unwilling

      to meet her responsibility as a parent. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct.

      App. 2001), trans. denied. Parental rights, therefore, are not absolute and must

      be subordinated to the best interests of the children. Id. Termination of

      parental rights is proper where the children’s emotional and physical

      development is threatened. Id. The juvenile court need not wait until the

      children are irreversibly harmed such that their physical, mental, and social

      development is permanently impaired before terminating the parent-child

      relationship. Id.



      Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018   Page 4 of 12
                                  Sufficiency of the Evidence
[8]    Mother contends that the evidence is insufficient to support the juvenile court’s

       order terminating her parental rights to the Children. In reviewing termination

       proceedings on appeal, this court will not reweigh the evidence or assess the

       credibility of the witnesses. In re Involuntary Termination of Parental Rights of

       S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider the

       evidence that supports the juvenile court’s decision and reasonable inferences

       drawn therefrom. Id. Where, as here, the juvenile court includes findings of

       fact and conclusions thereon in its order terminating parental rights, our

       standard of review is two-tiered. Id. First, we must determine whether the

       evidence supports the findings, and, second, whether the findings support the

       legal conclusions. Id.


[9]    In deference to the juvenile court’s unique position to assess the evidence, we

       set aside the juvenile court’s findings and judgment terminating a parent-child

       relationship only if they are clearly erroneous. Id. A finding of fact is clearly

       erroneous when there are no facts or inferences drawn therefrom to support it.

       Id. A judgment is clearly erroneous only if the legal conclusions made by the

       juvenile court are not supported by its findings of fact, or the conclusions do not

       support the judgment. Id.


[10]   Mother claims that DCS failed to present sufficient evidence to prove by clear

       and convincing evidence that:


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

       Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018   Page 5 of 12
                     (i) There is a reasonable probability that the
                     conditions that resulted in the child[ren]’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[ren].
                                               ****
               (C) termination is in the best interests of the child[ren.]


       Ind. Code § 31-35-2-4(b)(2).


                      A. Indiana Code Section 31-35-2-4(b)(2)(B)
[11]   On appeal, Mother argues that DCS failed to establish by clear and convincing

       evidence both that the conditions leading to the Children’s removal from her

       home would not be remedied and that there is a reasonable probability that the

       continuation of the parent-child poses a threat to the well-being of the Children.

       It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

       in the disjunctive, the juvenile court need only find either that (1) the conditions

       resulting in removal from or continued placement outside the parent’s home

       will not be remedied or (2) the continuation of the parent-child relationship

       poses a threat to the children. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.

       2003), trans. denied. Therefore, where the juvenile court determines one of the

       above-mentioned conditions has been proven and there is sufficient evidence in

       the record supporting the juvenile court’s determination, it is not necessary for

       DCS to prove, or for the juvenile court to find, either of the other two




       Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018   Page 6 of 12
       conditions listed in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H.,

       806 N.E.2d at 882.


                               1. Whether Conditions Will Be Remedied

[12]   In order to determine whether the conditions will be remedied, the juvenile

       court should first determine what conditions led DCS to place the Children

       outside or to continue the Children’s placement outside Mother’s care, and,

       second, whether there is a reasonable probability that those conditions will be

       remedied. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied; In

       re S.P.H., 806 N.E.2d at 882. When assessing the latter, the juvenile court must

       judge the parent’s fitness to care for the children at the time of the termination

       hearing, taking into consideration evidence of changed conditions. In re A.N.J.,

       690 N.E.2d 716, 721 (Ind. Ct. App. 1997). The juvenile court must also

       evaluate the parent’s habitual patterns of conduct to determine whether there is

       a substantial probability of future neglect or deprivation. Id.


[13]   A juvenile court may properly consider evidence of the parent’s prior criminal

       history, drug and alcohol abuse, history of neglect, failure to provide support,

       and lack of adequate employment and housing. McBride v. Monroe Cnty. Office of

       Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a

       juvenile court “‘can reasonably consider the services offered by [DCS] to the

       parent and the parent’s response to those services.’” Id. (quoting In re A.C.C.,

       682 N.E.2d 542, 544 (Ind. Ct. App. 1997)). The evidence presented by DCS

       “need not rule out all possibilities of change; rather, DCS need establish only

       that there is a reasonable probability that the parent’s behavior will not
       Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018   Page 7 of 12
       change.” In re Involuntary Termination of Parent-Child Relationship of Kay L., 867

       N.E.2d 236, 242 (Ind. Ct. App. 2007).


[14]   With regard to whether the conditions leading to removal would be remedied,

       the trial court found as follows:


               208. Mother has been involved in services with DCS since
               September of 2015. Mother is not in any better position to parent
               the children today than … she was when the children were
               removed. Mother has consistently chosen to do what she wants.
               Mother has continued her use of methamphetamine despite the
               services she has received. Mother has refused to consistently
               provide drug screens.

                                                       ****

               213. Mother’s past and continued use of methamphetamine is
               the best prediction of her future behavior, i.e., she will continue
               to use.…

               214. Mother’s … use of methamphetamine is a significant and
               substantive reason the children have continued to be removed
               from [her] care. [Mother’s] continuing use of methamphetamine
               has significantly hindered [her] ability to provide [the Children]
               with appropriate supervision and care. [Her] inability to achieve
               and maintain sobriety is a long-term issue.


       Appellant’s App. Vol. II, pp. 40, 41. Based on these findings, the trial court

       concluded that Mother has not “demonstrated the ability or willingness to make

       lasting changes from past behaviors. There is no reasonable probability that

       [she] will be able to maintain sobriety or stable housing for the children in order




       Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018   Page 8 of 12
       to care and provide adequately for the children.” Appellant’s App. Vol. II, p.

       46.


[15]   The evidence demonstrates that throughout the underlying CHINS and instant

       TPR proceedings, Mother has displayed ongoing drug abuse. Mother has been

       diagnosed with moderate to severe stimulant use disorder, in part because she

       continues to use illegal substances despite the negative consequences. Dating

       back to 2015, Mother would sometimes be under the influence of drugs during

       visitation with the Children. In November of 2016, Mother opted out of the

       Marion County drug-court program, choosing to serve time in jail rather than

       remain drug-free. Further, as of the dates of the evidentiary hearing, Mother

       continued to test positive for drugs, specifically methamphetamine. DCS

       presented testimony that while using methamphetamine, Mother would not be

       able to provide appropriate care for the Children.


[16]   Further, as of the dates of the evidentiary hearing, the Children were receiving

       extensive one-on-one services beyond that usually offered by DCS. Mother did

       not demonstrate an understanding of what these services entailed or why such

       services were necessary. The Children responded well to these services and,

       throughout the course of their treatment, had shown great improvement.

       Mother acknowledged that she was not ready for the Children to be returned to

       her care and could not provide a time frame for when she thought she would be

       ready to care for the Children.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018   Page 9 of 12
[17]   It is well-established that the juvenile court, acting as a trier of fact, was not

       required to believe or assess the same weight to the testimony as Mother. See

       generally Marshall v. State, 621 N.E.2d 308, 320 (Ind. 1993) (providing that it is

       for the trier of fact to determine which witnesses to believe or disbelieve).

       Mother’s challenges to the sufficiency of the evidence to support the

       conclusions of the juvenile court effectively amount to an invitation for this

       court to reassess witness credibility and reweigh the evidence, which we will not

       do. See In re S.P.H., 806 N.E.2d at 879.


[18]   Upon review, we conclude that the juvenile court did not err in concluding that

       the conditions leading to the Children’s removal from and continued placement

       outside Mother’s care were unlikely to be remedied. Having concluded that the

       evidence was sufficient to support the juvenile court’s determination, and

       finding no error by the juvenile court, we need not consider whether the

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

       well-being because DCS has satisfied the requirements of Indiana Code section

       31-35-2-4(b)(2)(B) by clear and convincing evidence.


                      B. Indiana Code section 31-35-2-4(B)(2)(C)
[19]   Mother also argues that DCS failed to establish by clear and convincing

       evidence that termination of her parental rights is in the Children’s best

       interests. We are mindful that in considering whether termination of one’s

       parental rights is in the best interests of a child, the juvenile court is required to

       look beyond the factors identified by DCS and look to the totality of the


       Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018   Page 10 of 12
       evidence. McBride, 798 N.E.2d at 203. In doing so, the juvenile court must

       subordinate the interests of the parent to those of the child involved. Id.

       Furthermore, this court has previously determined that the testimony of the

       case worker, a guardian ad litem (“GAL”), or a court appointed special

       advocate (“CASA”) regarding the child’s need for permanency supports a

       finding that termination is in the child’s best interests. Id.; see also Matter of

       M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.


[20]   Suzanne Conger, the Children’s GAL, testified that termination of Mother’s

       parental rights was in the Children’s best interests and additionally that it is in

       the Children’s best interests to be adopted by their current foster family.

       Conger also testified that she would “have safety concerns for the [C]hildren if

       they were returned back to [Mother’s] care at this time.” Tr. Vol. IV, p. 42.

       DCS Family Case Manager Hannah Lyman agreed and testified that DCS

       believes termination of Mother’s parental rights is in the Children’s best

       interests.


[21]   In addition, maternal grandmother testified that she believes the termination of

       Mother’s parental rights is in the Children’s best interests. Maternal

       grandmother acknowledged that although she loves the Children, she is unable

       to provide adequate care for them because of her poor health and limited

       financial resources. The trial court explicitly found maternal grandmother to be

       credible, finding that she “is putting the [C]hildren’s needs and best interests

       above her own desire.” Appellant’s App. Vol. II, p. 38.



       Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018   Page 11 of 12
[22]   The juvenile court found that the Children require extensive services and that

       they are thriving in their current foster placement. Numerous individuals

       testified that they would be concerned about the Children’s mental stability if

       they were removed from their current placement as Mother has shown no

       ability to comprehend or provide the care and services required by the Children.

       The juvenile court did not have to wait until the Children were irreversibly

       harmed such that their physical, mental, and social development was

       permanently impaired before terminating Mother’s parental rights. See In re

       C.M., 675 N.E.2d at 1140. In light of the above-discussed testimony, we

       conclude that the evidence is sufficient to satisfy DCS’s burden of proving that

       termination of Mother’s parental rights is in the Children’s best interests.

       Mother’s claim to the contrary merely amounts to an invitation for this court to

       reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.



                                               Conclusion
[23]   Having concluded that the evidence is sufficient to support the juvenile court’s

       order terminating Mother’s parental rights to the Children, we affirm the

       judgment of the juvenile court.


[24]   The judgment of the juvenile court is affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JT-2582 | May 9, 2018   Page 12 of 12
