MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Jun 05 2019, 9:23 am
regarded as precedent or cited before any
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
Renee M. Ortega                                           INDIANA DEPARTMENT OF
Lake County Juvenile Public Defender’s                    CHILD SERVICES
Office                                                    Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              June 5, 2019
Parent-Child Relationship of                              Court of Appeals Case No.
A.W. and S.W. (Minor                                      18A-JT-2834
Children) and                                             Appeal from the Lake Superior
L.W. (Mother),                                            Court

Appellant-Respondent,                                     The Honorable Thomas P.
                                                          Stefaniak, Jr., Judge
        v.                                                Trial Court Cause Nos.
                                                          45D06-1711-JT-271
Indiana Department of Child                               45D06-1711-JT-272
Services,
Appellee-Petitioner,




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019                   Page 1 of 13
      and Lake County Court
      Appointed Special Advocate,1
      Appellee-Intervenor.



      Mathias, Judge.


[1]   L.W. (“Mother”) appeals the Lake Superior Court’s termination of her parental

      rights to two of her children, A.W. and S.W. Mother argues four issues, which

      we restate as:

              I. Whether the trial court abused its discretion when it denied her
              motion to continue because she had started another treatment
              program days before the termination hearing;


              II. Whether the Department of Child Services (“DCS”) proved
              by clear and convincing evidence that the conditions that resulted
              in removal of the children are unlikely to be remedied;


              III. Whether DCS proved by clear and convincing evidence that
              the continuation of the parent-child relationship poses a threat to
              the well-being of the children; and,


              IV. Whether termination is in the best interests of the children.


[2]   We affirm.




      1
       Donald W. Wruck entered an appearance on behalf of the Lake County Court Appointed Special Advocate
      but did not file a brief on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019             Page 2 of 13
                              Facts and Procedural Background

[3]   Mother has six children, A.W., S.W., La.W., E.G., La. B., and Lo. B. The

      children have four separate fathers, all of whom were not involved with the

      children. In February of 2014, DCS received reports that the children were

      missing several days of school and/or showing up tardy. As a result, Mother

      entered into an informal adjustment (“IA”) where Mother agreed to send the

      children to school on time and to complete a parenting assessment. During the

      pendency of the IA, DCS received a report that the two youngest children were

      walking around the neighborhood unattended. Investigation showed that

      Mother was often absent or sleeping and that A.W. and S.W. were often taking

      care of the younger children. DCS also learned that Mother was being evicted

      and did not have anywhere to go. As a result, DCS removed the children and

      filed a CHINS petition in May of 2014. The CHINS court ordered Mother to

      complete a parenting assessment, an initial clinical assessment, home-based

      casework services, and supervised visitation.

[4]   Mother frequently used marijuana and cocaine. Mother attended an inpatient

      rehabilitation program at Transitions from April 2015 through February 2016.

      She relapsed shortly after leaving the program and was unable to obtain

      housing due to the relapse. DCS then referred her to an intensive outpatient

      program. However, she did not begin this program until two years later, in

      March or April 2018. Although she completed this second rehabilitative

      program, she continued to test positive for marijuana and cocaine. Tr. p. 51. In

      September of 2018, Mother requested that DCS refer her to services she had

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019   Page 3 of 13
      sought out on her own. Mother began another program days before the

      termination hearing. At the time of the termination hearing, Mother had not

      been drug screened since June of 2018.


[5]   Mother was inconsistent with visitation. The Family Case Manger (“FCM”)

      testified that she mostly did not show up and that maternal grandmother was

      allowed visitation largely so the children would see a family member during this

      time.2 Tr. p. 38. DCS made a referral for family therapy to take place after

      visitation; however, since Mother rarely attended visitation, this family therapy

      never took place. The only period that Mother was consistent with services and

      visitation was for ten months when she was attending the inpatient

      rehabilitation program and the children were transported to her. Mother visited

      the children in April 2017 and then again in December 2017. Because of

      Mother’s lack of consistency with visitation, the CHINS court ordered cessation

      of the visitation. Mother requested visitation in May 2018, which the trial court

      denied because she had not demonstrated compliance for ninety days.

[6]   Throughout the pendency of the CHINS matter, Mother lived in multiple

      places: at Transitions, at her mother’s home in Illinois, in Kokomo, Indiana,

      and in Gary, Indiana. The longest continuous employment mother held since

      DCS became involved that the FCM was aware of was for approximately six




      2
        Maternal grandmother regularly attended visitation; however, she routinely brought gifts for only one of the
      children. After the FCM informed grandmother that she would have to bring gifts for all of the children, she
      stopped attending visitation.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019                     Page 4 of 13
      months. Mother demonstrated a pattern of losing contact with the FCM for

      several months and then would contact the FCM, inform her that she had

      moved, and request services. After a May 2018 hearing, the FCM did not

      receive contact from Mother until September 2018.


[7]   The FCM testified that A.W. and S.W. had been “the most emotional” of all

      the children. Tr. p. 43. A.W. held his anger in and got into fights at school

      frequently. Because of his disruptive and disrespectful behavior at school, he

      was expelled from public school and attended day treatment. At the time of the

      termination hearing, he had just returned to public school. The FCM testified

      that A.W. had “lost hope” that his Mother would get him and his siblings back.

      Tr. p. 44. She observed both A.W. and S.W. demonstrated improved behavior

      once visitations with Mother stopped.


[8]   Austin Malone, who was the individual therapist for both A.W. and S.W., and

      who supervised visitation with Mother, testified. He stated that both A.W. and

      S.W. would challenge authority. He testified that S.W. had taken on parental

      roles when he was living with Mother, and once he was able to be a kid again,

      he would “push up against” situations in which he was not the “executive

      decision maker.” Tr. p. 87. He also testified that S.W. was confused when

      visitations stopped, and he demonstrated behavioral issues in multiple foster

      homes. Malone testified that S.W. “was constantly raging against discipline,

      because he couldn’t see the love” and felt like discipline was rejection. Tr. p. 88.

      Malone attributes A.W. and S.W.’s angry behavior to a lack of stability.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019   Page 5 of 13
[9]    Malone also testified that S.W. has progressed significantly since placement in

       his pre-adoptive home. He observed,

               [S.W.’s foster mother] has really, you know, she hunkered down
               with him and just kept on trying to instill the sense of structure
               around him, and also reinforcement, you know, where he
               wouldn’t ever perceive her discipline as some type of rejection.
               He always – he’s feeling the love, when she rewards him for
               doing the right thing. He’s very happy about that. [S.W.] has
               come a long way, a long way from where he was at this same
               point last year, when he was just getting in trouble all the time.


       Tr. p. 92. He agreed that Mother was not “a monster” but that both A.W. and

       S.W. were receiving the stability they need in their foster homes. Id.


[10]   DCS petitioned for termination in July of 2016. However, DCS withdrew its

       petition several months later because the children were no longer in pre-

       adoptive placements. DCS filed another petition for termination of parental

       rights for all of the children on November 30, 2017. The trial court held a

       hearing on DCS’s petition on October 24, 2018. As A.W. and S.W. were the

       only children in pre-adoptive placements, DCS only proceeded regarding these

       two children. Mother was provided notice of the termination hearing by court

       order, and DCS provided notice to N.S., father of A.W., and D.C., father of

       S.W., by publication. Prior to the start of the hearing, Mother moved to

       continue the termination hearing on the grounds that she had begun inpatient

       treatment days before the hearing. The trial court denied her motion to

       continue and heard the matter on the merits. After the hearing, the trial court



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019   Page 6 of 13
       entered an order terminating Mother’s parental rights to A.W. and S.W.

       Mother now appeals.


                                      Discussion and Decision

                                                   I. Continuance

[11]   Indiana Rule of Trial Procedure 53.5 provides for a continuance upon good

       cause. The decision to grant or deny a continuance is within the sound

       discretion of the trial court, and we will not reverse that decision unless the trial

       court has abused its discretion. Homehealth, Inc. v. Heritage Mut. Ins. Co., 662

       N.E.2d 195, 198 (Ind. Ct. App. 1996), trans. denied. A trial court abuses its

       discretion when it reaches a conclusion which is clearly against the logic and

       effect of the facts or the reasonable and probable deductions which may be

       drawn therefrom. Id. If good cause is shown for granting the motion, denial of

       a continuance will be deemed to be an abuse of discretion. Koors v. Great

       Southwest Fire Ins. Co., 530 N.E.2d 780, 783 (Ind. Ct. App. 1988); See Ind. Trial

       Rule 53.5.


[12]   When considering the appropriateness of a continuance within termination

       proceedings, the trial court may consider a parent’s patterns with respect to

       attendance, communication, and participation in services during the CHINS

       case. In re J.E., 45 N.E.3d 1243, 1247 (Ind. Ct. App. 2015), trans. denied. The

       party moving for a continuance must show that she or he is prejudiced by the

       denial. In re K.W., 12 N.E.3d 241, 243–44 (Ind. 2014). The party moving for a




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019   Page 7 of 13
       continuance must also show that he or she is “free from fault” In re B.H., 44

       N.E.3d 745, 748 (Ind. Ct. App. 2015) (citations omitted), trans. denied.


[13]   Here, Mother requested a continuance on the grounds that she had just entered

       a drug rehabilitation program and that pre-adoptive parents had only been

       identified for two of her six children. DCS objected, noting that Mother had

       started drug treatment and relapsed, and that she had failed to avail herself of

       drug treatment programs on earlier occasions. DCS further argued that the

       children had been removed from Mother’s care for approximately four and a

       half years. DCS further noted that the agency was making diligent efforts to

       find pre-adoptive homes for the other children and, while it strives to keep

       siblings together, it was not required to do so. The Court Appointed Special

       Advocate also joined in DCS’s objection, stating that Mother’s entry into the

       treatment program was more relevant to Mother’s defense than grounds for a

       continuance. The trial court denied Mother’s request, noting Mother does not

       have grounds for a continuance where the two children at issue had been in a

       pre-adoptive home for two years and where she had approximately four and a

       half years to become sober prior to the most recent attempt at treatment. For

       the same reasons, we agree that Mother did not show good cause for her

       requested continuance.


                                     II. Termination of Parental Rights

[14]   We have often noted that the purpose of terminating parental rights is not to

       punish parents but instead to protect their children. In re S.P.H., 806 N.E.2d

       874, 880 (Ind. Ct. App. 2004). Although parental rights are constitutionally
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019   Page 8 of 13
       protected, the law allows for the termination of such rights when parents are

       unable or unwilling to meet their responsibility as parents. Id. Indeed, a parent’s

       interest must be subordinated to the child’s interests in determining the proper

       disposition of a petition to terminate parental rights. In re G.Y., 904 N.E.2d

       1257, 1259 (Ind. 2009). The court need not wait until a child is harmed

       irreversibly before terminating the parent-child relationship. In re J.S., 906

       N.E.2d 226, 236 (Ind. Ct. App. 2009).

[15]   The termination of parental rights is controlled by Indiana Code section 31-35-

       2-4(b)(2), which provides that a petition to terminate parental rights must allege:

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

                        (i) The child has been removed from the parent for at least
                        six (6) months under a dispositional decree.

                        (ii) A court has entered a finding under IC 31-34-21-5.6
                        that reasonable efforts for family preservation or
                        reunification are not required, including a description of
                        the court's finding, the date of the finding, and the manner
                        in which the finding was made.

                        (iii) The child has been removed from the parent and has
                        been under the supervision of a local office or probation
                        department for at least fifteen (15) months of the most
                        recent twenty-two (22) months, beginning with the date
                        the child is removed from the home as a result of the child
                        being alleged to be a child in need of services or a
                        delinquent child;

               (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
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019   Page 9 of 13
                        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.

                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services;

               (C) that termination is in the best interests of the child; and

               (D) that there is a satisfactory plan for the care and treatment of
               the child.

[16]   The burden is on DCS to prove each element by clear and convincing evidence.

       I.C. § 31-37-14-2; G.Y., 904 N.E.2d at 1260–61. However, as Indiana Code

       section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is required

       to find that only one prong of that subsection has been established by clear and

       convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). If

       the court finds the allegations in a petition are true, the court shall terminate the

       parent-child relationship. I.C. § 31-35-2-8(a). If the court does not find that the

       allegations in the petition are true, it shall dismiss the petition. Id. at § 8(b).


[17]   A pattern of unwillingness both to deal with parenting problems and to

       cooperate with those providing social services, in conjunction with unchanged

       conditions, will support a finding that there exists no reasonable probability that

       the conditions will change. In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.

       2005). An inability to provide adequate housing, stability, and supervision,

       combined with the current inability to provide the same, will support a finding

       that continuation of the parent-child relationship is contrary to the child’s best
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019   Page 10 of 13
       interests. Id. Indeed, a factfinding court, “recognizing the permanent effect of

       termination . . . must also evaluate the parent’s habitual patterns of conduct to

       determine whether there is a substantial probability of future neglect or

       deprivation of the children.” In re D.G., 702 N.E.2d 777, 779 (Ind. Ct. App.

       1998).


[18]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh evidence nor judge witness credibility. In re E.M., 4

       N.E.3d 636, 642 (Ind. 2014). Rather, we consider only the evidence and

       inferences most favorable to the judgment. Id. When we review a trial court’s

       findings of fact and conclusions of law in a case involving the termination of

       parental rights, we first determine whether the evidence supports the findings;

       secondly, we determine whether the findings support the judgment. A.D.S. v.

       Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans.

       denied.


[19]   “[I]t is not enough that the evidence might support some other conclusion, but

       it must positively require the conclusion contended for by the appellant before

       there is a basis for reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011)

       (citations omitted). “Findings are clearly erroneous only when the record

       contains no facts to support them either directly or by inference.” Id. at 502

       (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)). If the evidence

       and inferences support the trial court’s decision, we must affirm. Id. at 503.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019   Page 11 of 13
       A. Reasonable probability that the conditions resulting in removal will not be
          remedied

[20]   Mother first became involved with DCS through an IA in February of 2014.

       The children were removed from her care several months later in May of 2014,

       and A.W. and S.W. have not been returned to her care since that time. In the

       four and a half years between initial DCS involvement and the termination

       hearing held on October 24, 2018, Mother had checked out of one

       rehabilitation program after completing most of the program and immediately

       relapsed, losing her housing. After non-communication with the caseworker

       and failing to enroll after a previous referral, Mother completed an intensive

       outpatient program. After the completion of this program, Mother continued to

       test positive for both marijuana and cocaine. She did not demonstrate stable

       employment or housing throughout the four and half years leading up to the

       termination hearing. While she had recently begun another rehabilitation

       program, she was unable to demonstrate the ability to remain sober and provide

       a stable home for S.W. and A.W. For these reasons, we conclude that DCS met

       its burden of meeting this prong by clear and convincing evidence. Because

       DCS is only required to prove one prong of Indiana Code section 31-35-2-

       4(b)(2)(B), we do not address whether the continuation of the parent-child

       relationship poses a threat to the well-being of the children.


       B. Best interests of the children

[21]   Here, since DCS first became involved in 2014, Mother has been unable to

       maintain sobriety or a stable home. The FCM and a therapist for A.W. and


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019   Page 12 of 13
       S.W. testified that both children demonstrated significant behavioral issues

       from the lack of stability in their lives and from having had to act as parent to

       their younger siblings. Both individuals felt that A.W. and S.W. were in stable

       homes that provided appropriate love and discipline and that A.W. and S.W.

       had made significant strides in improving their behavioral issues. As Mother

       had not submitted to drug screens in several months leading up to the

       termination hearing, and had just recently checked into another treatment

       program, there was no evidence presented that she was able to provide an

       appropriate and stable home. We commend Mother’s decision to seek

       substance abuse treatment and encourage her to continue on the path to

       sobriety; however, for A.W. and S.W., DCS has met its burden by clear and

       convincing evidence that termination is in their best interests.


                                                  Conclusion
[22]   The trial court did not commit error when it determined that Mother did not

       demonstrate good cause for a continuance. Additionally, DCS met its burden of

       demonstrating by clear and convincing evidence there is a reasonable

       probability that the conditions that resulted in removal will not be remedied and

       that termination is in the best interests of the children. For these reasons, we

       affirm the trial court’s termination of Mother’s parental rights to A.W. and

       S.W.


[23]   Affirmed.


       May, J., and Brown, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2834 | June 5, 2019   Page 13 of 13
