MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Oct 10 2018, 10:01 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool                                      Curtis T. Hill, Jr.
Warsaw, Indiana                                           Attorney General of Indiana

                                                          Patricia C. McMath
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of The                                      October 10, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          18A-JT-1062
C.S. (Minor Child)                                        Appeal from the Wabash Circuit
                                                          Court
         and
                                                          The Honorable Robert R.
B.S. (Mother),                                            McCallen, III, Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          85C01-1710-JT-21
        v.

Indiana Department of Child
Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018                 Page 1 of 11
      Altice, Judge.




                                                      Case Summary


[1]   B.S. (Mother) appeals the involuntary termination of her parental rights to her

      daughter, C.S. (Child).1 Mother’s sole argument on appeal is that the Indiana

      Department of Child Services (DCS) failed to present sufficient evidence that

      termination of her parental rights is in Child’s best interests.


[2]   We affirm.


                                             Facts & Procedural History


[3]   Mother gave birth to Child on January 8, 2016. DCS intervened at the hospital

      because Mother tested positive for amphetamine. When interviewed by a DCS

      family case manager (FCM), Mother indicated that she had been incarcerated

      in Fulton County Jail from September 19 through November 3, 2015. Mother

      admitted that she had used heroin while pregnant prior to her incarceration and

      that after her release, she used controlled substances that she obtained on the




      1
          Father’s parental rights were also terminated, but he does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018                 Page 2 of 11
      street. Child was removed from Mother’s care at the hospital and has remained

      in relative placement since that time with Child’s great aunt (Aunt).


[4]   On January 12, 2016, DCS filed a petition alleging Child to be a child in need

      of services (CHINS). At the CHINS hearing, Mother admitted the allegations

      and Child was so adjudicated on March 31, 2016. Following a dispositional

      hearing on April 15, 2016, the trial court entered a dispositional order directing

      Mother to, among other things, participate in supervised visits, maintain weekly

      contact with the FCM, complete a substance abuse assessment and follow all

      treatment recommendations, and submit to random drug and alcohol screens.


[5]   Mother visited with Child once or twice a week and engaged in services

      through DCS for about three months following Child’s birth. She participated

      in Moral Reconation Therapy (MRT therapy) and substance abuse counseling

      “on and off” through the Bowen Center. Transcript at 22. During supervised

      visits, Mother was loving and appropriate with Child. Mother’s participation in

      services, however, ended in April 2016 as a result of another incarceration.

      Child was three months old at the time. Mother spent the rest of 2016 in and

      out of jail. She did not maintain communication with the FCM, participate in

      services, or visit Child. Mother acknowledged that during this time she was

      using meth, heroin, pills, and “pretty much anything.” Id. at 37.


[6]   In February 2017, Mother contacted FCM Alicia Lopez to start services again.

      Mother participated in an intake evaluation at the Bowen Center and restarted

      supervised visitation. The Bowen Center recommended forty sessions,


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018   Page 3 of 11
      including group and individual therapy. Mother did not participate in any of

      the recommended sessions. As a result, visitation was suspended in March.


[7]   Shortly thereafter, Mother was arrested in Fulton County and remained in jail

      until November 8, 2017, when she entered court-ordered treatment with the

      Women’s Journey Substance Abuse Treatment Program at the YWCA in

      South Bend. Mother participated in individual counseling, group counseling,

      and Narcotic’s Anonymous meetings, as well as random drug screens. She,

      however, did not complete the inpatient program or start the year-long aftercare

      program.


[8]   Mother left the YWCA on December 24, 2017, on a two-day pass for

      Christmas. She had a supervised visit with Child on Christmas day. Mother

      did not return to the YWCA as scheduled, despite the fact that she knew this

      would result in the violation of her probation. Instead, Mother returned to

      using drugs. She had no further visits with Child and did not participate in any

      other services. Then, in early February 2018, Mother overdosed on heroin in

      Wabash County and was arrested following her hospital stay. Mother was

      charged, in Wabash County, with three Level 6 felonies and one Class A

      misdemeanor, all drug-related charges. Additionally, a petition to revoke

      probation was filed in Fulton County.


[9]   In the meantime, on October 20, 2017, DCS filed the instant petition to

      terminate Mother’s parental rights. On April 4, 2018, the trial court held a

      factfinding hearing in the termination case. FCM Lopez, Mother, and Aunt


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018   Page 4 of 11
       testified. Mother remained incarcerated at the time of the hearing, with both

       criminal causes pending. Mother testified that she had been participating in

       MRT and substance abuse services for about four to five weeks in jail. Aunt

       indicated that she wishes to adopt Child, whom she has cared for since Child

       was four days old. FCM Lopez recommended termination of the parent-child

       relationship, as Child had been removed for over two years and Mother had not

       remedied her substance abuse issues or been consistent with services.


[10]   After the hearing, the trial court issued its order involuntarily terminating

       Mother’s parental rights. The order contained the following relevant findings:


               At no time has reunification, while the goal, been seriously
               considered.


               [Mother] has been in and out of jail both prior to [Child’s] birth
               and after [Child’s] birth. Her incarceration has seriously
               hampered her ability to engage in any of the Court ordered
               services. However, even when she has not been incarcerated, she
               has made no substantive progress toward reunification.


               She was court ordered into a treatment program at the YWCA in
               South Bend, Indiana, in November of 2017. She obtained a pass
               to go home for the Christmas holiday. During that holiday she
               had one visit with [Child] for a few hours. [Mother] violated the
               terms of her pass by failing to timely return to the program. She
               made virtually no effort to return to that program. She engaged
               in no services or further visits with [Child]. Instead, she returned
               to her old ways. In early February of this year, she overdosed on
               heroin and was taken to the hospital. Following her release from
               the hospital she was arrested on an outstanding warrant, which
               she knew about. She remains in jail to this day. She is unsure of
               when her current incarceration will end.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018   Page 5 of 11
        While incarcerated, [Mother] appears motivated to seek out and
        participate in programming. When not incarcerated, she is not.
        She cannot parent when she is incarcerated. Her history is a
        good predictor of her future. She cannot care for herself or
        [Child].


                                                 ***


        [Child] has never lived with [Mother].


        The evidence is clear and convincing that continuation of the
        parent-child relationship is not in [Child’s] best interests....


        At no time during the pendency of this action has reunification
        been considered because of [Mother’s] failure to make any
        recognizable or substantive progress. Reunification was the goal,
        and it was pursued, to no avail.


        [Child] is in a placement that seeks to adopt her. She is doing
        well in that placement. DCS’s plan for [Child] is adoption.


Appellant’s Appendix at 9-10. Based on its findings, the trial court concluded that

Child had been removed from Mother’s care for a period of at least six months

under a dispositional decree, there is a reasonable probability that the

conditions that resulted in Child’s removal will not be remedied, termination is

in Child’s best interests, and DCS has a satisfactory plan for Child’s care and

treatment following termination. Mother now appeals, challenging only the

trial court’s determination regarding Child’s best interests.


                                     Discussion & Decision


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018   Page 6 of 11
[11]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. 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 most favorable to the judgment. Id. In deference to

       the trial court’s unique position to assess the evidence, we will set aside its

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[12]   When the trial court enters specific findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. Bester v. Lake Cty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

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

       support the judgment. Id. “Findings are clearly erroneous only when the

       record contains no facts to support them either directly or by inference.” Quillen

       v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

       only if the findings do not support the court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[13]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018   Page 7 of 11
       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[14]   As set forth above, Mother challenges only the trial court’s determination

       regarding Child’s best interests. Ind. Code § 31-35-2-4(b)(2)(C) requires DCS to

       allege and prove by clear and convincing evidence that termination is in the best

       interests of the child. In determining whether termination of parental rights is

       in the best interests of a child, the trial court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. In re J.C.,

       994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court must

       subordinate the interests of the parent to those of the child, and the court need

       not wait until a child is irreversibly harmed before terminating the parent-child

       relationship. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185,

       199 (Ind. Ct. App. 2003). Our Supreme Court has explained that

       “[p]ermanency is a central consideration in determining the best interests of a

       child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have

       previously held that the recommendations of the case manager and court-

       appointed 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.”

       In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018   Page 8 of 11
[15]   Mother takes issue with the trial court’s findings that she does not appear

       motivated to seek out and participate in treatment when she is not incarcerated.

       To dispute this finding, Mother directs us to evidence that she complied with

       services for the first three months of Child’s life (January 2016 to early April

       2016) and then engaged in supervised visitation and an intake evaluation in

       February 2017. The termination hearing, however, took place in April 2018,

       when Child was over two years old and two months after Mother had

       overdosed on heroin. Although Mother was incarcerated much of Child’s life,

       she was out of jail off and on from August 2016 through the spring of 2017.

       During this time, she cooperated with the DCS for only about a month.

       Further, after she violated probation by failing to return to the YWCA, Mother

       was not incarcerated from Christmas 2017 through early February 2018.

       Instead of engaging in services and visiting Child, Mother returned to her life of

       drugs and eventually overdosed. In light of the totality of the evidence, the trial

       court’s finding regarding Mother’s lack of motivation to seek treatment for her

       drug addiction is not clearly erroneous.


[16]   Nonetheless, Mother attempts to liken this case to G.Y., 904 N.E.2d 1257, in

       which our Supreme Court determined that the evidence did not clearly and

       convincingly establish that termination was in the child’s best interests. The

       mother in that case had cared for her child for the first twenty months of the

       child’s life. There were no allegations that the mother had engaged in any

       criminal behavior after the child’s birth, and the mother had been a fit parent

       during the time she cared for her child. The mother became incarcerated when


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018   Page 9 of 11
       the child was twenty months old for a crime she committed before the child’s

       conception. While incarcerated, the mother “took positive steps and made a

       good-faith effort to better herself as a person and as a parent.” Id. at 1262.

       Specifically, she completed an eight-week drug rehabilitation program and a

       fifteen-week parenting class. She also actively participated in an employment

       readiness program and had nearly completed her associates degree, which

       would move her projected release date up by about a year. In addition to

       making “a good-faith effort to complete the required services available to her in

       prison”, the mother had obtained suitable housing and gainful employment

       upon her release from prison, which was imminent. Id. at 1263. Finally, the

       Court observed that “since her incarceration Mother has maintained a

       consistent, positive relationship with G.Y.” Id. at 1264. In sum, the mother

       had demonstrated a “commitment to reunification with G.Y. from the very

       point of her arrest.” Id. at 1265.


[17]   Unlike the mother in G.Y., Mother has not demonstrated an ongoing

       commitment to doing what is necessary to gain custody of Child. Out of the

       twenty-seven months Child had been alive at the time of the termination

       hearing, Mother had exercised supervised visits with her for only about four

       months, just one of which was during the last two years. During the majority

       of this time, Mother was either incarcerated or continued to use drugs,

       including overdosing on heroin and being arrested two months before the

       termination hearing. Mother never completed a drug treatment program,

       despite ample opportunities. Further, it is unknown how long she will remain


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018   Page 10 of 11
       incarcerated on her pending felony charges and probation violation. In sum,

       Mother has made no real, sustained progress toward addressing her substance

       abuse issues, staying out of jail, and working toward reunification.


[18]   We do not doubt that Mother loves Child and wishes to parent her. Mother’s

       pattern of behavior prior to and after Child’s birth, however, reveals that she is

       not able to care for herself, let alone Child. Child has lived with Aunt since she

       was four days old and has done well in that placement. Aunt wishes to adopt

       Child. FCM Lopez opined that termination and adoption by Aunt were in

       Child’s best interests. After more than two years and little to no progress by

       Mother, Child deserves permanency now. The trial court’s conclusion that

       termination is in Child’s best interests is supported by the findings and not

       clearly erroneous.


[19]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018   Page 11 of 11
