MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Aug 10 2017, 8:59 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.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Logansport, Indiana                                      Attorney General of Indiana
Jacob A. Ahler                                           Abigail R. Recker
Rensselaer, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the                                August 10, 2017
Parent-Child Relationship of:                            Court of Appeals Case No.
                                                         09A04-1701-JT-70
A.M. (Minor Child),
                                                         Appeal from the Cass Circuit
And                                                      Court
R.M. (Father) and A.T.                                   The Honorable Leo T. Burns, Jr.,
(Mother),                                                Judge
Appellants-Respondents,                                  Trial Court Cause No.
                                                         09C01-1604-JT-1
        v.

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 1 of 24
      Riley, Judge

                                STATEMENT OF THE CASE
[1]   Appellants-Respondents, A.T. (Mother) and R.M. (Father) (collectively,

      Parents), appeal the trial court’s Order terminating their parental rights to their

      minor child, A.M. (Child).


[2]   We affirm.


                                                    ISSUE
[3]   Although Parents have filed separate appellate briefs, we consolidate the

      various issues raised and restate the sole issue as: Whether the Indiana

      Department of Child Services (DCS) presented clear and convincing evidence

      to support the termination of Parents’ parental rights.


                      FACTS AND PROCEDURAL HISTORY
[4]   Mother and Father are the biological parents of the Child, born on June 14,

      2011. Father established his paternity for the Child at birth by executing a

      paternity affidavit. Although Parents are not married, they met in

      approximately 2006 and lived together with the Child in Logansport, Cass

      County, Indiana.


[5]   In November of 2013, both Father and Mother were arrested on a plethora of

      charges. Specifically, Father was charged with armed robbery, a Class B

      felony; dealing in a Schedule I controlled substance (i.e., heroin), a Class B

      felony; possession of a controlled substance (i.e., heroin), a Class D felony;

      Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 2 of 24
      unlawful possession of a syringe, a Class D felony; pointing a firearm, a Class

      D felony; neglect of a dependent (i.e., the Child), a Class D felony; possession

      of marijuana, a Class A misdemeanor; possession of paraphernalia, a Class A

      misdemeanor; and failure to stop after accident resulting in damage to an

      unattended vehicle, a Class B misdemeanor. Mother was similarly charged

      with dealing in a Schedule I controlled substance (i.e., heroin), a Class B felony;

      possession of a controlled substance (i.e., heroin), a Class D felony; unlawful

      possession of a syringe, a Class D felony; and neglect of a dependent (i.e., the

      Child), a Class D felony. For a few days, the Child stayed with his maternal

      grandmother until Mother was released on bond. Father, however, remained

      incarcerated.


[6]   While released on bond, on March 5, 2014, Mother injected herself with heroin

      at a friend’s home; the two-year-old Child was in a nearby room at the time.

      Mother subsequently lost consciousness, and the friend drove her and the Child

      to the Logansport Police Department. From there, Mother was transported by

      ambulance to the emergency room at Logansport Memorial Hospital. At some

      point, Mother admitted to police officers that she had used heroin, and a drug

      screen revealed opiates, methamphetamine, and amphetamine in her system.

      Mother was admitted to the hospital, and the Cass County office of DCS was

      notified that Mother had overdosed in the Child’s presence. Due to Father’s

      incarceration and Mother’s inability to care for the Child, DCS obtained an

      emergency detention order and immediately took the Child into custody. DCS

      placed the Child in the care of his paternal aunt and uncle. On March 7, 2014,


      Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 3 of 24
      DCS filed a petition alleging the Child to be a Child in Need of Services

      (CHINS). On March 19, 2014, Parents admitted to the allegations in the

      CHINS petition, and the trial court adjudicated the Child to be a CHINS.


[7]   On April 9, 2014, the trial court held a dispositional hearing. On April 11,

      2016, the trial court issued a dispositional order, directing Parents to participate

      in services designed to reunify them with the Child. Specifically, the trial court

      ordered Parents, in part, to: contact DCS on a weekly basis; maintain safe,

      stable housing; secure and maintain a legal and stable source of income

      sufficient to support household members, including the Child; participate in

      home-based casework services “to assist in establishing and maintaining safe

      housing, establish budgeting skills, implement consistent, age appropriate

      parenting, seek resources and supporting their efforts to become sober”; attend

      all visitation sessions and implement parenting techniques learned during

      home-based services; enroll in all services recommended by DCS or other

      service providers; complete a drug assessment and any recommended treatment

      to achieve sobriety; submit to random drug screens upon request of DCS or any

      other service provider; refrain from possessing or consuming any alcohol or

      non-prescribed controlled substances; obey the law; and provide the Child

      “with a safe, secure and nurturing environment that is free from abuse and

      neglect and be an effective caregiver who possesses the necessary skills,

      knowledge and abilities to provide the [Child] with this type of environment on

      a long-term basis to provide the [Child] with permanency.” (Appellant-




      Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 4 of 24
      Mother’s App. Vol. II, pp. 42, 45). Mother was further ordered to pay $51.00

      per week in child support.


[8]   With respect to Mother, early in the proceedings, she did not comply with her

      case plan. Shortly after the Child’s removal, Mother was enrolled in home-

      based case services and permitted to have supervised visits with the Child.

      During visits, Mother had to be redirected to put her cell phone down and

      interact with the Child, and the Child “was distant and he was very unsure as to

      how to act around [Mother].” (Tr. Vol. II, p. 84). Within a matter of weeks,

      Mother had repeatedly failed to appear for appointments and visitation with the

      Child; thus, her services were terminated. Additionally, Mother had several

      positive drug screens, but she refused to participate in substance abuse

      treatment.


[9]   On April 28, 2014, the State moved to revoke Mother’s bond because she was

      charged with the additional crime of theft as a Class D felony. After spending

      some time in the Cass County Jail, in July of 2014, Mother was released to

      undergo inpatient substance abuse treatment at Tara Treatment Center in

      Franklin, Indiana. The completion of the three-week treatment program was

      made a condition of Mother’s release, and she successfully complied. On

      September 16, 2014, Mother pled guilty to possession of a controlled substance,

      a Class D felony, and neglect of a dependent, a Class D felony. Mother was

      sentenced to four years, with three years executed through Community

      Corrections and one year suspended to probation. It also appears that Mother

      was convicted of her felony theft charge and was sentenced to probation.

      Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 5 of 24
       Mother was assigned to Community Corrections’ work release program. At

       this point, Mother was fully participating in her DCS case plan. She obtained a

       factory job at Indiana Packers in Delphi, Indiana; she maintained negative drug

       screens; she consistently visited with the Child and tried to connect with him;

       and she participated in therapy and completed addiction classes through

       Community Corrections. Yet, despite a period of sobriety, on February 27,

       2015, a drug screen revealed that Mother had taken a narcotic medication that

       had not been prescribed. Accordingly, on March 10, 2015, a violation of work

       release was filed, and Mother returned to jail. On May 5, 2015, the trial court

       ordered Mother to execute her previously suspended sentence, once again,

       through Community Corrections.


[10]   Upon her return to Community Corrections, Mother continued her

       employment with Indiana Packers. Notwithstanding her general compliance

       with her Community Corrections program, Mother displayed a proclivity for

       disregarding the administrative rules by, for example, failing to timely pay her

       fees, not doing her assigned chores, and not submitting her time cards. With

       respect to her DCS case plan, Mother passed all her drug screens and

       participated in services. She consistently visited the Child three times per week

       for three hours each visit, under supervision. Mother “always had money for

       meals[,] [and] [s]he brought supplies to visits.” (Tr. Vol. II, p. 99). The

       visitation supervisor observed that Mother and the Child shared what “seemed

       like a big sister, little brother kind of relationship than more of a mom and son.”

       (Tr. Vol. II, p. 100). There was a lack of “consistency with positive and


       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 6 of 24
       negative reinforcement,” and Mother struggled with knowing how to handle

       the Child’s temper tantrums. (Tr. Vol. II, p. 100).


[11]   A few months before Mother was set to complete her sentence, her supervision

       level was downgraded from work release to home detention. As such, Mother

       moved in to her parents’ home. However, shortly thereafter, on February 8,

       2016, Mother submitted to a drug screen which yielded positive results for

       amphetamine, for which Mother did not have a prescription. Accordingly,

       Mother was sent back to jail for violating the terms of her work release. After

       her violation, Mother’s Community Corrections supervisor also discovered that

       at the end of October of 2015, Mother had reported that she was at work when,

       in actuality, Mother had used personal time to visit her boyfriend without

       authorization.


[12]   Following her incarceration, Mother attempted to maintain weekly phone

       contact with the Child, specifically during the times that the Child was visiting

       his maternal grandmother. However, the Child’s paternal aunt (i.e., his foster

       mother) was “not comfortable” with the phone calls due to her lack of

       involvement in them. (Tr. Vol. II, p. 141). The Child’s paternal aunt also

       requested that DCS refer the Child to see a therapist after the Child threw “a fit

       about something that was really peculiar to [her]” and other concerns about his

       anger. (Tr. Vol. II, p. 157). The Child’s therapist diagnosed him with “an

       adjustment disorder” and with “symptoms of early attachment disruption based

       on the history of child neglect.” (Tr. Vol. II, p. 68). Upon the therapist’s

       recommendation, all contact between Mother and the Child was terminated.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 7 of 24
[13]   Turning to Father, following the Child’s removal and CHINS adjudication, he

       did not participate in his DCS case plan due to his incarceration. On June 16,

       2014, Father pled guilty to possession of a controlled substance, a Class D

       felony; pointing a firearm, a Class D felony; and neglect of a dependent, a Class

       D felony. He was sentenced to six years, with two years executed in the

       Indiana Department of Correction, two years executed through Cass County

       Community Corrections, and two years suspended to supervised probation.


[14]   In October of 2014, Father was released from prison and transferred to

       Community Corrections to serve his sentence through the work release

       program. Father obtained factory employment. Additionally, he also had

       visitation with the Child, and “for a while [he] was calling [the Child] almost

       every day.” (Tr. Vol. II, p. 164). Because Mother was concurrently serving her

       Community Corrections sentence, she and Father sometimes had joint

       visitation with the Child. During these times, the visitation supervisor

       consistently “had to warn [Mother] and [Father] about touching [each other]

       and not paying attention to [the Child,] and I had to tell them that they couldn’t

       talk about their relationship during the visit and that they had to focus on

       parenting [the Child].” (Tr. Vol. II, p. 85). Although their relationship status

       was unclear to Community Corrections officials, Parents were observed

       displaying affection and had to be warned of Community Corrections’ rules

       against such conduct.


[15]   Community Corrections intended to enroll Father in its addiction programs

       after Mother had completed them (so that Parents would not interfere with each

       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 8 of 24
       other’s progress); however, on January 10, 2015, Father submitted to a random

       drug screen and tested positive for opiates (morphine, heroin metabolite, and

       codeine). As a result, on April 6, 2015, the trial court reinstated his previously-

       suspended two-year sentence, to be executed in Community Corrections on top

       of his existing Community Corrections sentence. On July 3, 2015, Father was

       sent to Tara Treatment Center for substance abuse treatment; he successfully

       completed the program on July 24, 2015.


[16]   Based upon the recommendation of the providers at Tara Treatment Center,

       Father requested to be transferred to The Progress House in Indianapolis,

       which is “like a half-way house, independent living house.” (Tr. Vol. II, p.

       121). On September 17, 2015, Father moved to The Progress House, and on

       October 2, 2015, he was evicted because he failed to comply with The Progress

       House’s rules—such as completing chores and other assignments. Accordingly,

       Father returned to jail. On November 10, 2015, the trial court ordered Father

       to be placed on home detention in the Agape House, a residential treatment

       facility in Indianapolis, where he would be subject to electronic monitoring but

       could continue to be employed. While in Indianapolis, Father briefly worked at

       a clothing store; he participated in substance abuse treatment classes and home-

       based services; and he visited with the Child. Father “did really well” in terms

       of parenting the Child. (Tr. Vol. I, p. 181). However, DCS noted concerns that

       it “never saw what it would be like for [Father] to discipline [the Child]. We

       never got to that point to where he was with him long enough for [the Child] to

       misbehave or have the need for the discipline. That was something that [DCS]


       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 9 of 24
       was always concerned about is how will he handle that situation if he’s put into

       that situation.” (Tr. Vol. II, p. 181).


[17]   On March 20, 2016, Father again violated the conditions of his Community

       Corrections sentence when he was evicted from the Agape House for possession

       of fake urine. Instead of reporting to Community Corrections, Father slept in

       the parking lot at Agape House for more than a week, unbeknownst to the

       treatment facility. On March 28, 2016, Community Corrections was notified of

       Father’s eviction and subsequently made contact with Father. Father admitted

       that he did not return to Community Corrections over fear of the consequences,

       so he slept in his vehicle in the Agape House parking lot to trick his electronic

       monitoring equipment. Father was ordered to appear, but he did not do so for

       another three or four days. At that time, Father refused to submit to a drug

       screen. Accordingly, Father returned to jail and was also subsequently charged

       with a Level 6 felony for failing to return to lawful detention.


[18]   On April 18, 2016, DCS filed a petition to terminate Parents’ parental rights to

       the Child. On September 19 and October 5, 2016, the trial court conducted a

       hearing on DCS’ petition to terminate Parents’ parental rights. At the time of

       the termination hearings, Father was incarcerated, and Mother transitioned

       from incarceration to work release and living in a residential facility. The Child

       remained in his relative placement and was thriving; his paternal aunt and

       uncle intend to adopt him. On December 13, 2016, the trial court issued its

       Order, terminating Parents’ parental rights. The trial court concluded, in

       pertinent part, that there is a reasonable probability that the conditions resulting

       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 10 of 24
       in the Child’s removal and continued placement out of Parents’ custody will

       not be remedied; there is a reasonable probability that the continuation of the

       parent-child relationship poses a threat to the Child’s well-being; and

       termination of Parents’ rights is in the Child’s best interests.


[19]   Parents now appeal. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                              I. Standard of Review

[20]   Parents appeal the trial court’s termination of their parental rights. A parent

       has an “interest in the care, custody, and control of his or her children [that] is

       ‘perhaps the oldest of the fundamental liberty interests.’” In re G.Y., 904 N.E.2d

       1257, 1259 (Ind. 2009) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). The

       Fourteenth Amendment to the United States Constitution thus safeguards “the

       traditional right of parents to establish a home and raise their children.” Id.

       Nevertheless, it is well established that “parental rights are not absolute and

       must be subordinated to the child’s interests when determining the proper

       disposition of a petition to terminate parental rights.” S.L. v. Ind. Dep’t of Child

       Servs., 997 N.E.2d 1114, 1122 (Ind. Ct. App. 2013) (internal quotation marks

       omitted) (quoting In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)). Termination

       of parental rights is appropriate where “parents are unable or unwilling to meet

       their parental responsibilities.” In re G.Y., 904 N.E.2d at 1259-60. We

       appreciate that the termination of a parent-child relationship is “an extreme

       measure and should only be utilized as a last resort when all other reasonable


       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 11 of 24
       efforts to protect the integrity of the natural relationship between parent and

       child have failed.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 646 (Ind.

       2015) (internal quotation marks omitted).


[21]   Upon review of a trial court’s termination of parental rights, our court does not

       reweigh evidence or assess the credibility of witnesses. In re G.Y., 904 N.E.2d at

       1260. Rather, we “consider only the evidence and reasonable inferences that

       are most favorable to the judgment.” Id. Additionally, the trial court issued

       specific findings of fact and conclusions thereon, which requires application of

       the two-tiered standard of review set forth in Indiana Trial Rule 52(A): “[f]irst,

       we determine whether the evidence supports the findings, and second we

       determine whether the findings support the judgment.” Id. We “shall not set

       aside the findings or judgment unless clearly erroneous, and due regard shall be

       given to the opportunity of the trial court to judge the credibility of the

       witnesses.” Ind. Trial Rule 52(A). A trial court has clearly erred “if the

       findings do not support the trial court’s conclusions or the conclusions do not

       support the judgment.” In re G.Y., 904 N.E.2d at 1260 (quoting Bester v. Lake

       Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005)).


                                            II. Termination Statute

[22]   To support the termination of a parent’s rights, DCS must prove, in relevant

       part, that a child has been removed from the home for a certain period, and

               (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

       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 12 of 24
                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 [CHINS].
                (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 is required to establish each element by clear

       and convincing evidence. In re G.Y., 904 N.E.2d at 1260.


[23]   On appeal, Parents do not challenge the trial court’s conclusions that the Child

       has been removed from their care for the requisite time or that DCS has

       established a satisfactory plan for the Child’s care and treatment going forward.

       Rather, they contend that there is insufficient evidence to support the trial

       court’s conclusions that there is a reasonable probability either that the

       conditions resulting in the Child’s removal and continued placement outside

       the home will not be remedied or that the continuation of the parent-child

       relationship poses a threat to the Child’s well-being 1 and that termination is in

       the Child’s best interests. We address each argument in turn.




       1
          Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; thus, DCS need only prove one of the
       three elements listed. See In re A.K., 924 N.E.2d 212, 220-21 (Ind. Ct. App. 2010), trans. dismissed. In this
       case, DCS did not allege that the Child has been twice adjudicated a CHINS. Therefore, the relevant inquiry
       is whether DCS established the existence of a reasonable probability either that the conditions resulting in the
       Child’s removal or continued placement outside the home will not be remedied or that the continuation of the
       parent-child relationship poses a threat to the Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017              Page 13 of 24
                                         A. Remediation of Conditions

[24]   In considering whether there is a reasonable probability that conditions will not

       be remedied, we must identify what conditions led to the Child’s “placement

       and retention” outside of the home and then determine whether there is a

       reasonable probability that those conditions will not be remedied. K.T.K. v. Ind.

       Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). In making these

       decisions, “the trial court must judge a parent’s fitness as of the time of the

       termination proceeding, taking into consideration evidence of changed

       conditions—balancing a parent’s recent improvements against habitual

       pattern[s] of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)

       (citation omitted) (internal quotation marks omitted) (quoting Bester, 839

       N.E.2d at 152; K.T.K., 989 N.E.2d at 1231). “Habitual conduct may include

       ‘criminal history, drug and alcohol abuse, history of neglect, failure to provide

       support, and lack of adequate housing and employment.’” K.E., 39 N.E.3d at

       647. DCS “is not required to provide evidence ruling out all possibilities of

       change; rather, it need only establish that there is a reasonable probability that

       the parent’s behavior will not change.” A.D.S. v. Ind. Dep’t of Child Servs., 987

       N.E.2d 1150, 1157 (Ind. Ct. App. 2013) (internal quotation marks omitted),

       trans. denied.


[25]   According to Mother, the evidence does not support a conclusion that there is a

       reasonable probability that the conditions resulting in the Child’s removal and

       continued placement out of the home will not be remedied. Without

       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 14 of 24
       specifically challenging any of the trial court’s findings, she argues that the

       evidence instead establishes that she “made substantial strides in improving

       herself while incarcerated.” (Appellant-Mother’s Br. p. 29). She notes that she

       “became very consistent in exercising parenting time”; she “completed the

       program[m]ing that was available to her regarding nutrition, budgeting, and

       parenting. She also took several classes directed at preventing relapse and

       successfully completed inpatient drug treatment at TARA.” (Appellant-

       Mother’s Br. p. 29). Furthermore, her “release from incarceration was

       imminent,” and she was presently employed through work release with plans

       for employment and housing after her release. (Appellant-Mother’s Br. p. 29).

       Mother further claims that she “had a good sense of what program[m]ing and

       support network she needed from her family to prevent relapse once released

       from incarceration.” (Appellant-Mother’s Br. p. 29). Mother also states that

       she “only had two positive drug screens and a violation for not reporting a visit

       with a boyfriend” in a two-year span. (Appellant-Mother’s Br. p. 29). Finally,

       Mother points out that, despite the paternal aunt’s attempts to thwart her

       relationship with the Child, Mother endeavored to maintain contact with him.


[26]   Similarly, although he frames it as a challenge to whether the proper

       evidentiary standard was applied, Father asserts that

               [b]y the time this case reached the termination hearing, . . .
               Father made it clear to the [c]ourt that he had been compliant in
               the services he could do while incarcerated, that he had only one
               failed drug screen in over two years, that he was bonded with
               [the Child], and that he had employment opportunities awaiting
               him when he was released from jail. Simply, there was no
       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 15 of 24
                prejudice to the State or [the Child] by allowing Father to have
                the opportunity to continue his services so that reunification
                could be achieved.


       (Appellant-Father’s Br. p. 13). 2 Father insists that the present case is analogous

       to In re J.M., 908 N.E.2d 191, 194-96 (Ind. 2009), wherein our supreme court

       determined that termination of a parent’s rights was inappropriate because the

       parents, who were both incarcerated, expected to be released soon; parents had

       engaged in the services required of them while incarcerated; the parents had an

       established relationship with the child; and the mother had completed her

       bachelor’s degree and the father had employment and housing lined up for the

       family such that their “ability to establish a stable and appropriate life upon

       release can be observed and determined within a relatively quick period of

       time.”


[27]   Parents’ arguments largely amount to a request to reweigh the evidence, which

       we decline to do. See In re Termination of Parent-Child Relationship of D.D., 804

       N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Furthermore, we find that

       the evidence and the trial court’s unchallenged findings establish that this case

       is distinct from In re J.M. in that Parents failed to implement lasting changes to

       ensure the Child would not suffer future neglect. Here, the Child was removed




       2
         Father vaguely challenges the trial court’s conclusion regarding the remediation of the conditions resulting
       in removal, but he has not developed a separate argument regarding whether there was sufficient evidence of
       a reasonable probability that the continuation of the parent-child relationship poses a threat to the Child’s
       well-being. Thus, he has effectively conceded that Indiana Code section 31-35-2-4(b)(2)(B) was satisfied. We
       nevertheless elect to address his argument in conjunction with Mother’s.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017            Page 16 of 24
       after Mother overdosed on heroin while Father was incarcerated, leaving the

       Child without a caregiver. Father brazenly argues that “DCS became involved

       in this case due to . . . Mother’s overdose on heroin, not due to . . . Father’s

       incarceration.” (Appellant-Father’s Br. p. 17). Father completely ignores the

       fact that if he had been available to properly care for the Child and fulfill his

       parental responsibilities at the time of Mother’s overdose, DCS would not have

       had to take the Child into emergency custody and place him with the paternal

       aunt and uncle.


[28]   Throughout the case, Parents cycled between incarceration and supervision by

       Community Corrections. During their periods of work release and home

       detention, Parents were afforded services by DCS and an opportunity to visit

       with the Child. Parents were also permitted to participate in relevant programs

       through the Department of Correction and/or Community Corrections. There

       is no dispute that Parents participated in, and even completed, several substance

       abuse treatments and classes and home-based services, and they generally did

       well during their fully-supervised visits with the Child. Parents also testified

       that they expected to complete their sentences soon after the termination

       hearing, at which point, Father intended to work for his family’s business and

       find housing, whereas Mother hoped to return to her factory job and live with

       her parents.


[29]   Notwithstanding the positive steps that Parents took, they failed to internalize

       the lessons and the ramifications of ongoing substance abuse. Parents declined

       to take responsibility for their conduct and blamed others for their own poor

       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 17 of 24
choices. As the director of Community Corrections testified, Father and

Mother habitually refused to learn from their past behavior. They believe that

they need only “follow their own rules,” “and then when that type of behavior

exists that’s, that leads to the bigger stuff. That leads to the . . . drug use, to the

lying.” (Tr. Vol. II, p. 115-16). The trial court found that Parents “have

received numerous hours of substance abuse treatment and education”; yet,

they “have continued to use illegal substances and commit other illegal acts.”

(Appellant-Mother’s App. Vol. II, p. 115). Mother failed one drug screen while

under supervision through work release and another drug screen within a few

weeks of moving to her parents’ home to serve her sentence on home detention.

After the Child’s removal and while out on bond, Mother was charged with a

Class D felony theft, and she violated a host of Community Corrections rules.

While Father may have only technically failed one drug screen, he was evicted

from a halfway house for possessing fake urine, and he subsequently refused to

submit to a drug screen. Like Mother, Father also refused to consistently

comply with the rules of Community Corrections. Moreover, Father further

risked his parent-child relationship by committing the additional offense of

failing to return to lawful detention in the midst of the CHINS proceedings. See

Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App.

2006) (“[I]ndividuals who pursue criminal activity run the risk of being denied

the opportunity to develop positive and meaningful relationships with their

children.”), trans. denied.




Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 18 of 24
[30]   Although both Parents claimed that they were sober as of the termination

       hearing and indicated that they were ready to fulfill their parental duties, the

       trial court clearly found a lack of credibility in their testimony. Specifically, the

       trial court found that “Mother’s conscious choice to spend time with her

       boyfriend during hours she was supposed to be at work and subsequently lying

       to her corrections officer [did] not lend [the trial] court to determine that

       Mother is willing to put her [Child’s] needs above her own wants or show an

       ability to address and remedy some of the underlying behaviors of lying and

       sneaking around that surround the use of illegal substances.” (Appellant-

       Mother’s App. Vol. II, p. 115). Likewise, the trial court found that Father’s

       excuses for failing to return to lawful detention and submit to a drug screen

       after being evicted from the Agape House were “incredible and unconvincing.”

       (Appellant-Mother’s App. Vol. II, p. 116).


[31]   The trial court found that the Parents’ conduct throughout the case—relapses,

       committing new crimes, and refusing to adhere to the conditions of Community

       Corrections—negated their claims that they had made lasting changes in their

       lives:

                [Parents] are both unwilling to change their behaviors even on
                the most basic of levels despite the consequences. The
                consequence of being denied parenting time with one’s child
                should be enough to promote compliance with the basic rules of
                [C]ommunity [C]orrections but this did not deter either parent
                from violating the rules or disregard[ing] them altogether.




       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 19 of 24
       (Appellant-Mother’s App. Vol. II, p. 116). See In re Termination of Parent-Child

       Relationship of D.D., 804 N.E.2d at 267 (relying on the parent’s “habitual pattern

       of conduct” as indicative of the parent’s inability to remedy conditions). It is

       clear that the Child’s removal and continued placement out of the home was

       the direct result of Parents’ poor decision-making and refusal to prioritize the

       needs of the Child. Therefore, the trial court did not err as there is sufficient

       evidence of a reasonable probability that the conditions resulting in the Child’s

       removal and continued placement outside the home will not be remedied. 3


                                                   B. Best Interests

[32]   When considering the best interests of a child, we recognize that the purpose of

       terminating a parent-child relationship is to protect the child, not to punish the

       parent. In re C.C., 788 N.E.2d 847, 855 (Ind. Ct. App. 2003), trans. denied.

       “[C]lear and convincing evidence need not reveal that the continued custody of

       the parent . . . is wholly inadequate for the child’s very survival[,] . . . it is

       sufficient to show . . . that the child’s emotional and physical development are

       threatened by the respondent parent’s custody.” K.T.K., 989 N.E.2d at 1234-35

       (quoting Bester, 839 N.E.2d at 148). To determine whether termination is in a

       child’s best interests, the trial court must “look beyond the factors identified by

       [DCS] and . . . look to the totality of the evidence.” A.D.S., 987 N.E.2d at

       1158. “[C]hildren cannot wait indefinitely for their parents to work toward



       3
        Based on this determination, we need not address the alternative element of Indiana Code section 31-35-2-
       4(b)(2)(B) regarding whether the continuation of the parent-child relationship poses a threat to the Child’s
       well-being. See In re A.K., 924 N.E.2d at 220-21.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017            Page 20 of 24
       preservation or reunification—and courts ‘need not wait until the child is

       irreversibly harmed such that the child’s physical, mental and social

       development is permanently impaired before terminating the parent-child

       relationship.’” In re E.M., 4 N.E.3d at 648 (quoting K.T.K., 989 N.E.2d at

       1235). It is well established that “[p]ermanency is a central consideration in

       determining the [child’s] best interests.” K.T.K., 989 N.E.2d at 1235

       (alterations in original) (quoting In re G.Y., 904 N.E.2d at 1265).


[33]   Our courts have long held that “the recommendation by both the [DCS] case

       manager and child advocate to terminate parental rights, in addition to

       evidence that the conditions resulting in removal will not be remedied, is

       sufficient to show by clear and convincing evidence that termination is in the

       child’s best interests.” A.D.S., 987 N.E.2d at 1158. Here, DCS recommended

       that the trial court terminate Parents’ rights. DCS testified that Mother “needs

       a very structured environment in order to succeed,” and she has not established

       that she will be able to provide herself with such upon her release. (Tr. Vol. II,

       p. 180). Father’s pattern of conduct indicates that he “would be someone who[]

       [is] in and out of [the Child’s] life” “due to drug use or doing something that’s

       not legal.” (Tr. Vol. II, p. 182). Following a hearing, Father had admitted to

       DCS that, while he did not want his rights terminated, he doubted his ability to

       care for the Child full time. The Child’s guardian ad litem also recommended

       that termination would be in the Child’s best interests—primarily based on the

       substantial length of time that the Child has been removed without a showing

       of meaningful improvement by Parents. While the guardian ad litem expressed


       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 21 of 24
       “some reluctance” based on Parents’ limited contact with the Child and the fact

       that the interactions they did have were positive, the guardian ad litem

       acknowledged that Parents’ missed opportunities to demonstrate their parenting

       abilities were “entirely[ by] their own doing by the decisions that they’ve

       made.” (Tr. Vol. II, p. 195). The guardian ad litem also cited concerns that

       Parents would, again, relapse.


[34]   Nevertheless, Parents contend that the Child’s best interests do not support

       termination of their parental rights. Mother asserts that, even though the Child

       is bonded with his relative placement, “she has exercised consistent visitation

       on over a hundred occasions during her incarceration. Mother showed an

       eagerness to bond with [the Child] and the bond was observed repeatedly by

       supervisors . . . .” (Appellant-Mother’s Br. p. 22). Mother also contends that

       she “availed herself of several programs” while incarcerated, her release was

       imminent, and she “had a plan for life after incarceration, available

       employment, a support network to prevent relapse, and available housing with

       her family.” (Appellant-Mother’s Br. pp. 23-24). Father raises similar

       arguments as to why the Child’s best interests preclude termination. He

       contends that he made a “good-faith measure” to engage in substance abuse

       treatment and participated in other services and classes, and he visited with the

       Child. (Appellant-Father’s Br. p. 14). Notwithstanding that his repeated bouts

       of incarceration were solely his own fault and that Father faced pending charges

       at the time of the termination hearing, Father complains that he “was never

       given a substantial opportunity to show that he could provide for [the Child]


       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 22 of 24
       and be a parent after removal” due to his confinement. (Appellant-Father’s Br.

       p. 14). Finally, Father cites his love for, and bond with, the Child.


[35]   The love Parents have for the Child is not in dispute; yet, instead of doing

       whatever was necessary to reunite with the Child, they chose to repeatedly

       violate rules and forego their sobriety. The trial court ultimately found that the

       Child “needs caregivers who can provide him with a nurturing environment

       that is secure and free of abuse and neglect and meets the [C]hild’s needs.”

       (Appellant-Mother’s App. Vol. II, p. 120). The trial court specified that Parents

       “have demonstrated no ability to parent the [C]hild or to provide him with the

       nurturing, stable, and appropriate care and environment that he requires on a

       long term basis.” (Appellant-Mother’s App. Vol. II, p. 120). Evidence was

       presented that the Child suffers from an “Adjustment Disorder stemming from

       the trauma he has suffered in his short life.” (Appellant-Mother’s App. Vol. II,

       p. 120). While Parents intermittently attempted to comply with their case

       plans, their recurrent relapses and violations prevented them from establishing

       that they could care for the Child on a permanent basis going forward. Taking

       into account the recommendations of DCS and the guardian ad litem, along

       with the evidence of the Child’s progress in his relative placement and Parents’

       lack of meaningful remediation over a two-and-one-half-year period, we agree

       with the trial court’s determination that there is clear and convincing evidence

       that termination of Parents’ rights is in the Child’s best interests.




       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 23 of 24
                                             CONCLUSION
[36]   Based on the foregoing, we conclude that the trial court did not clearly err as

       DCS presented sufficient evidence to support the termination of Parents’

       parental rights.


[37]   Affirmed.


[38]   Robb, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017   Page 24 of 24
