MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Aug 26 2016, 7:59 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
Russell Dean Bailey                                      Gregory F. Zoeller
Demotte, Indiana                                         Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             August 26, 2016
Parent-Child Relationship of:                            Court of Appeals Case No.
E.M., Minor Child,                                       37A03-1604-JT-912
                                                         Appeal from the Jasper Circuit
T.R.,                                                    Court
Appellant-Respondent,                                    The Honorable John D. Potter,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         37C01-1512-JT-339
Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016         Page 1 of 11
      Najam, Judge.


                                          Statement of the Case
[1]   T.R. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor child E.M. (“Child”). Mother raises a single issue for our review,

      namely, whether the State presented sufficient evidence to support the

      termination of her parental rights. We affirm.


                                   Facts and Procedural History
[2]   Mother gave birth to Child on September 8, 2013.1 In November and

      December 2014, the Indiana Department of Child Services (“DCS”) received

      two reports that Mother was abusing illegal drugs. One of those reports was

      made after a family member found Mother unconscious outside of her

      apartment while Child was alone inside Mother’s apartment. On December 31,

      Jody Knoth, a DCS caseworker, made an unannounced visit to Mother’s home

      and conducted a drug screen on Mother, which indicated that Mother had

      taken methamphetamine. Thereafter, on January 8, 2015, DCS removed Child

      from Mother’s care and placed Child with Child’s father.


[3]   On January 9, 2015, DCS filed a petition alleging that Child was a Child in

      Need of Services (“CHINS”). In particular, DCS alleged that Mother: was

      abusing methamphetamine and marijuana, as indicated by a drug screen; was




      1
        In February 2016, Child’s father, K.M., voluntarily terminated his parental rights and does not participate
      in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016        Page 2 of 11
      reportedly abusing heroin; had left Child home alone when Mother was found

      passed out outside of her apartment; and had not provided stable housing for

      Child. During the initial hearing on that petition, Mother denied the

      allegations. The trial court adjudicated Child to be a CHINS and, following a

      factfinding hearing, the court ordered Mother to participate in a drug treatment

      program, submit to random drug screens, participate in individual therapy,

      complete a substance abuse evaluation, and participate in parenting education.

      Mother’s compliance with that dispositional order was inconsistent. While

      Mother initially complied with parent education services and visited with Child,

      “things dropped off pretty substantially” in terms of Mother’s participation in

      services as of April or May of 2015. Tr. at 13. Mother did not comply with the

      recommendations of the substance abuse evaluation, and she left an inpatient

      substance abuse treatment facility one day after she had checked in. Mother

      continued to fail drug screens and had “[c]riminal involvement, including for

      drugs.” Id.


[4]   On December 23, 2015, DCS filed a petition to terminate Mother’s parental

      rights to Child. Following a hearing, the trial court granted that petition. In

      support of its order, the trial court entered the following findings and

      conclusions:


              8. That after the Dispositional Order was entered Mother
              inconsistently participated with services. Since that time mother
              failed to complete any drug treatment program; continued to test
              positive for illegal substances or substances she does not have a
              prescription for including opiates, marijuana, methamphetamine,
              tramadol, and heroin; has had criminal charges through the
      Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016   Page 3 of 11
        CHINS case and presently a warrant for her arrest; has given
        different addresses and phone numbers in order to avoid service
        providers and DCS; and failed to participate in visitations.

        9. DCS’ plan for Child is that she be adopted; this plan is
        satisfactory for Child’s care and treatment.

        10. It was established by clear and convincing evidence that the
        allegations of the petition are true in that:

                 a. The child has been removed from her parents for
                 at least six (6) months under a dispositional
                 decree. . . .

                 b. There is a reasonable probability that: the
                 conditions that resulted in the child’s removal or the
                 reasons for the placement outside the parent’s home
                 will not be remedied and/or the continuation of the
                 parent[-]child relationship poses a threat to the well[-
                 ]being of the child, in that:

                         i. That Mother currently has a warrant
                         out for her arrest for a revocation of
                         probation.

                         ii. That Mother inconsistently
                         participated in services and was not
                         compliant.

                         iii. That Mother is still continuing to
                         test positive for substances that she does
                         not have a prescription for and for
                         illegal substances.

                         iv. That Mother has had criminal
                         charges during the underlying CHINS
                         case.

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016   Page 4 of 11
                         v. That Mother only made 19 [of] 46
                         offered visitations.

                         vi. That Mother failed to complete any
                         drug treatment program.

                         vii. That Mother has had inconsistent
                         housing and still continues to have
                         unstable housing.

                         viii. That Mother was only employed
                         once between September and November
                         during the CHINS case and is no longer
                         employed.

                         ix. That Mother actively tried to avoid
                         service providers and DCS by giving
                         different addresses and phone numbers.

                 c. Termination is in the best interest of the child in
                 that:

                         i. The child needs a safe, stable
                         substance abuse[-]free home that mother
                         cannot provide.

                         ii. That the mother cannot provide the
                         child with permanency that can be
                         provided by the prospective adoptive
                         home.

                 d. The DCS has a satisfactory plan for the care and
                 treatment of the child, which is adoption.


Appellant’s App. at 8-9. This appeal ensued.



Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016   Page 5 of 11
                                     Discussion and Decision
[5]   We begin our review of this appeal 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 Family & Children (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 Cnty. Ofc. of Family & Children (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]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove, 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 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.

      Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016   Page 6 of 11
                                                      ***

               (C) [and] that termination is in the best interests of the child . . . .


      Ind. Code § 31-35-2-4(b)(2). That statute provides that DCS need establish only

      one of the requirements of subsection (b)(2)(B) before the trial court may

      terminate parental rights. 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 Cnty. Ofc. of

      Family & Children (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.

      Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999), trans. denied.


[8]   Here, in terminating Mother’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 Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

      2005). First, we determine whether the evidence supports the findings and,

      Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016   Page 7 of 11
       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]    Mother contends that the evidence is insufficient to support the trial court’s

       findings underlying its conclusions that Mother will not remedy the conditions

       that resulted in Child’s removal; that the continuation of the parent-child

       relationship poses a threat to the well-being of Child; that termination is in the

       best interests of Child; and that there is a satisfactory plan for Child. Because

       Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we only

       address the sufficiency of the evidence to support the trial court’s conclusions

       that continuation of the parent-child relationship poses a threat to Child’s well-

       being; that termination is in Child’s best interests; and that there is a satisfactory

       plan for Child. And we address each of those contentions in turn.


                            Continuation of the Parent-Child Relationship

[10]   In the opening paragraphs of the Argument section of her brief, Mother

       purports to challenge the DCS’ evidence in support of this element of the

       statute. However, Mother does not make cogent argument or provide citations

       to the record on appeal or case law in support of this contention. Ind. Appellate

       Rule 46(A)(8)(a). Accordingly, the issue is waived.




       Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016   Page 8 of 11
[11]   Waiver notwithstanding, DCS presented ample evidence to support the trial

       court’s conclusion that the continuation of the parent-child relationship poses a

       threat to Child’s well-being. A trial court need not wait until a child is

       irreversibly influenced by a deficient lifestyle such that his physical, mental, and

       social growth is permanently impaired before terminating the parent-child

       relationship. Shupperd v. Miami Cnty. Div. of Family & Children (In re E.S.), 762

       N.E.2d 1287, 1290 (Ind. Ct. App. 2002). When the evidence shows that the

       emotional and physical development of a child in need of services is threatened,

       termination of the parent-child relationship is appropriate. Id.


[12]   Mother does not challenge any of the trial court’s findings. The undisputed

       evidence shows that Child was removed from Mother’s care approximately one

       year before DCS filed its petition to terminate her parental rights. During the

       CHINS proceedings, Mother did not follow recommendations for treatment of

       her substance abuse and checked herself out of an inpatient substance abuse

       treatment facility after one day; Mother continued to fail drug screens

       throughout the CHINS proceedings; Mother avoided contact with DCS; and

       Mother attended only nineteen of forty-six scheduled visitations with Child. In

       short, Mother failed to comply with the court’s dispositional order in a myriad

       of ways. The trial court’s findings support the trial court’s conclusion that there

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

       poses a threat to Child’s well-being.




       Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016   Page 9 of 11
                                                    Best Interests

[13]   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 evidence. In re A.K.,

       924 N.E.2d 212, 224 (Ind. Ct. App. 2010). “A parent’s 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.

       “Additionally, a child’s need for permanency is an important consideration in

       determining the best interests of a child, and the testimony of the service

       providers may support a finding that termination is in the child’s best interests.”

       In re A.K., 924 N.E.2d at 224.


[14]   Mother has also waived this issue for failure to present cogent argument. 2

       Waiver notwithstanding, both the family case manager and the court appointed

       special advocate testified that termination of Mother’s parental rights was in

       Child’s best interests. The totality of the evidence, including Mother’s historical

       inability to provide a safe and stable home and her refusal to take advantage of

       the resources DCS provided her during the CHINS proceedings, supports the




       2
         After arguing that the trial court “erred in ruling that there was a likely probability that the conditions
       leading to the removal [of Child] would not be remedied,” Mother’s argument on the remaining two
       statutory elements consists of the following: “Mother also disputes that the termination was in the best
       interests of the Child or that DCS had a satisfactory plan for the Child in adoption as Child will now grow up
       without having her Mother in her life[.]” Appellant’s Br. at 18.

       Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016        Page 10 of 11
       trial court’s conclusion that termination of Mother’s parental rights is in Child’s

       best interests.


                                               Satisfactory Plan

[15]   In order for the trial court to terminate the parent-child relationship, the trial

       court must find that there is a satisfactory plan for the care and treatment of the

       child. A.P. v. Marion Cnty. Ofc. of Family & Children (In re D.D.), 804 N.E.2d 258,

       268 (Ind. Ct. App. 2004), trans. denied. This plan does not need to be detailed,

       so long as it offers a general sense of the direction in which the child will be

       going after the parent-child relationship is terminated. Id.


[16]   By again failing to present cogent argument, Mother has waived her contention

       that the evidence does not support the trial court’s conclusion that DCS has a

       satisfactory plan for the care of Child. Waiver notwithstanding, the undisputed

       evidence shows that DCS plans to place Child for adoption in one of four

       prospective homes. The trial court’s conclusion on this issue is supported by

       clear and convincing evidence. The trial court did not err when it terminated

       Mother’s parental rights to Child.


[17]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016   Page 11 of 11
