MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                   Jul 22 2020, 10:15 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                         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
Danielle L. Flora                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 22, 2020
of Parental Rights:                                       Court of Appeals Case No.
                                                          20A-JT-220
S.S. (Minor Child),
                                                          Appeal from the Allen Superior
And                                                       Court
L.N. (Mother),                                            The Honorable Charles F. Pratt,
Appellant-Respondent,                                     Judge
                                                          The Honorable Sherry A. Hartzler,
        v.                                                Magistrate
                                                          Trial Court Cause No.
The Indiana Department of                                 02D08-1904-JT-205
Child Services,
Appellee-Petitioner.



Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020                     Page 1 of 16
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, A.L.N. (Mother), appeals the trial court’s termination

      of her parental rights to the minor child, S.S. (Child).


[2]   We affirm.


                                                     ISSUE
[3]   Mother raises one issue on appeal, which we restate as follows: Whether the

      Department of Child Services (DCS) presented sufficient evidence to support its

      petition to terminate the parent-child relationship.


                      FACTS AND PROCEDURAL HISTORY
[4]   Mother is the biological parent to Child, born on February 13, 2006. On April

      26, 2016, DCS filed a Child in Need of Services (CHINS) petition, alleging that

      Mother had failed to properly supervise Child, Mother tested positive for

      cocaine and synthetic cannabinoids while Child was in her care, Mother

      permitted homeless people to use drugs in her home, and Mother failed to

      ensure that Child regularly attended school. On May 18, 2016, after Mother

      admitted to the allegations, the trial court granted DCS’s petition and

      adjudicated Child to be a CHINS. On June 27, 2016, the trial court ordered

      Mother to participate in services, including, submitting to assessments for

      behavioral health and drug/alcohol, taking medications as prescribed, engaging

      in homebased services, engaging in counseling, obtaining and maintaining

      employment, attending supervised visits with the Child, and participating in

      random drug screens.
      Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 2 of 16
[5]   On October 4, 2016, the trial court determined that Mother had failed to

      satisfactorily participate in the court-ordered services and changed her

      supervised visitation to be “therapeutic in nature.” (Tr. Exh. p. 30). On

      October 31, 2016, Mother was charged with maintaining a common nuisance

      as a Level 6 felony, to which she pled guilty on January 9, 2017. She received a

      suspended sentence of one year and 183-days. On April 10, 2017, the trial court

      determined that Mother had not yet fully complied with the dispositional

      services, had not remained in contact with DCS, and had not participated in

      therapy. The trial court found that Mother had “not demonstrated an ability to

      benefit from services.” (Tr. Exh. p. 45). In March and August 2017, Mother

      was found in violation of the terms of her probation and sentenced to the

      Department of Correction on November 22, 2017. Mother was released on

      July 9, 2018, after violating the terms of her work release.


[6]   By September 19, 2018, Mother tested positive for illegal substances and had

      failed to satisfactorily participate in court-ordered services and programs. On

      November 19 and 20, 2018, the trial court conducted a fact-finding hearing

      during which it denied DCS’s termination petition, finding, in pertinent part,

      that Mother had recently demonstrated a willingness to provide for Child and

      Mother had positively started to engage in services. Yet by April 8, 2019,

      Mother again failed to participate in therapy, submit to random drug screens,

      was unemployed, and had visited the Child while under the influence of drugs

      and alcohol. Accordingly, DCS filed a second petition to terminate Mother’s

      parental rights.


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 3 of 16
[7]   On four non-consecutive days in September 2019, the trial court conducted

      factfinding hearings on the DCS’s petition to terminate Mother’s parental rights

      to Child. During these proceedings, the trial court received extensive testimony

      from David Lombard, Ph.D. (Dr. Lombard), a forensic psychologist. On May

      24, 2016, Dr. Lombard performed a psychological assessment of Mother. At

      the time, Mother was unemployed and living with her mother, who paid for all

      of Mother’s expenses. Dr. Lombard observed that Mother had “long episodes

      of mania and depressions[.] Her ability to concentrate is poor. She is easily

      distracted. She had racing thoughts and tangential thinking during her

      appointment.” (Tr. Exh. p. 126). Mother admitted to using marijuana when

      she was fourteen years old and confirmed that she had used marijuana within a

      month of her appointment with Dr. Lombard. She used “various narcotics over

      the years to help take the edge off[.]” (Tr. Exh. p. 126). Mother informed Dr.

      Lombard that the Child was on the autism spectrum, had intermittent explosive

      disorder, and ADHD. Although Child was on medication, Mother, on her

      own, “had been attempting to decrease his medications at that time to a point

      where he was not being overmedicated.” (Tr. Exh. p. 126). Dr. Lombard

      opined that Mother should receive “comprehensive medication management to

      treat her bipolar disorder and generalized anxiety disorder symptoms.” (Tr.

      Exh. p. 128). Because of her history of marijuana and synthetic marijuana use,

      he also recommended at least six months of substance abuse treatment.


[8]   On July 19, 2016, Mother returned to Dr. Lombard’s office for complete

      psychological testing. She reported feeling overwhelmed, with “very high stress


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 4 of 16
      levels” which prevented her from taking “care of her activities of daily living.”

      (Tr. Exh. p. 134). While Mother reported she was on medication, her “long

      term pattern of mood disorder symptoms” indicated to Dr. Lombard that

      Mother’s medication was not controlling her condition. He recommended

      comprehensive medication management to “control her bipolar disorder and

      PTSD symptoms.” (Tr. Exh. p. 137). Mother showed delusional thought

      patterns. Her drug history indicated that “she is highly likely to continue

      using,” and needed to engage in a complete substance abuse treatment for at

      least six months. Dr. Lombard also recommended that Mother address her

      personality disorder through dialectical behavior therapy.” (Tr. Exh. p. 137).

      Dr. Lombard concluded, “overall, the current assessment indicated that

      [Mother] is high risk for abuse and neglect of children because of her severe

      mental health conditions and addiction issues.” (Tr. Exh. p. 137).


[9]   Following Dr. Lombard’s diagnoses, Mother was referred to medication

      management at Bowen Center, but she failed to follow through with this

      referral. In March 2019, a month prior to DCS filing its termination petition,

      Mother returned to Bowen Center. At that time, Mother worked with mental

      health counselor Mukhabbat Yusupova (Dr. Yusupova) on substance abuse and

      individual therapy. Dr. Yusupova testified that Mother completed the therapy

      and had benefitted from it. Although Mother tested positive through DCS

      screens on four different occasions from March until July 2019, Dr. Yusupova

      was unaware of Mother’s positive test results. “Given Mother’s continued use




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 5 of 16
       and her dishonesty in therapy,” Dr. Yusupova opined that her level of therapy

       would have to be reassessed. (Transcript Vol. II, pp. 165-66).


[10]   During the termination proceeding, evidence was received that Mother had

       been consistently attending visitation with the Child since November 2018.

       Despite her attendance, Mother struggled with maintaining appropriate

       behavior and boundaries. Mother was often unable to appropriately respond to

       Child’s behavioral issues during visits, instead resorting to yelling and swearing

       at the Child. Even when Mother was provided instruction, she resorted to the

       same behavior.


[11]   After DCS filed its termination petition, Mother started to participate in home-

       based services in May 2019. Although Mother’s goals were to obtain housing,

       employment, and transportation, she was not compliant. Mother’s housing

       remained unstable, and since her dismissal from work release in July 2018, she

       had been living “on and off with her sister” in a two-bedroom home. (Tr. Vol.

       II, p. 188). Mother’s sister had been an alcoholic for twenty years, and even

       though Mother insisted that her sister was currently sober, DCS case managers

       observed persons under the influence in the home.


[12]   Child has been with the same foster family since June 2016. He was diagnosed

       with “high functioning Asperger’s syndrome, for which he initially displayed

       behaviors such as hitting himself and hitting himself on a glass table, running

       away, and having behavioral issues at school.” (Appellant’s App. Vol. II, p.

       18). Since then, his behavior issues have undergone a marked improvement


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 6 of 16
       and he has “an Individual Education Plan” at school, which Mother stopped

       participating in after November 2018. (Appellant’s App. Vol. II, p. 18).


[13]   Bowen Center started working with Mother and Child even prior to DCS’s

       involvement. Based on observations, concerns remained that “Mother would

       not be able to handle [Child’s] behaviors, as she has historically not followed

       through with the recommendations of Bowen Center to assist her.”

       (Appellant’s App. Vol. II, pp. 18-19). DCS’s family case manager (FCM)

       testified that Mother ceased engaging in services in November 2018 after DCS’s

       failed first termination petition, and she only re-engaged in services in March

       2019, a month prior to DCS’s second termination petition. Even then, Mother

       generally refused to engage in drug screens, and only occasionally agreed to

       submit to testing. Despite the limited testing, Mother still tested positive for

       marijuana in March and June 2019, and for cocaine in May 2019.


[14]   Evidence was received that Child had been removed from Mother’s care for

       more than forty months at the time of the termination proceeding. FCM

       testified that Child has autism and needs stability, and therefore “it would be

       harmful to place him with Mom, because there doesn’t seem to be any stability,

       no transportation, no stable employment and housing[.]” (Appellant’s App.

       Vol. II, p. 22). FCM advised that Mother cannot take care of “an autistic

       child” because she “is really struggling to take care of herself.” (Appellant’s

       App. Vol. II, p. 22). The Child’s Guardian ad Litem (GAL) opined that

       termination would be in the Child’s best interest because of Mother’s failure to



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 7 of 16
       successfully complete treatment and obtain sobriety, and her refusal to regularly

       submit to drug screens.


[15]   On December 30, 2019, the trial court entered its Order terminating Mother’s

       parental rights to the Child, concluding in pertinent part:


               48. [] By the clear and convincing evidence, the [c]ourt
               determines that there is a reasonable probability that the reasons
               that brought about the Child’s placement outside the home will
               not be remedied.


               49. The court concludes that the reason for the Child’s
               placement outside of Mother’s home was due to her drug use, her
               failure to benefit from services, and her unwillingness to
               appropriately address her mental health.


               50. The court concludes that not only does Mother have her own
               issues with mental health and stability, so does the Child in this
               matter. The [c]ourt concludes that [Child] is a special needs
               young man who requires stability and consistency to assist him in
               obtaining the proper therapy and managing his own behaviors.
               The court concludes that, although the Child requires consistency
               and stability, Mother has been unable and unwilling to
               demonstrate an ability to provide this need to the Child, Mother
               has demonstrated with particularity, that she is unable to provide
               appropriate care for her Child, given that she has knowingly
               resided with an individual who has been an addict for twenty
               years, and that she engaged in an abusive relationship. Of
               particular concern is Mother’s own complete lack of insight into
               her mental health needs and her dishonesty in therapy as to her
               continued use of illegal substances.


               51. [] In this case the [GAL] and CASA have concluded that
               termination of parental rights is in the [Child’s] best interests.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 8 of 16
               The court concludes that the termination of parental rights and
               the plan for care and treatment for adoption will provide the
               Child with the nurturing care and protection he requires. It is
               therefore in the [Child’s] best interests that the petition to
               terminate parental rights be granted.


       (Appellant’s App. Vol II, pp. 56-57).


[16]   Mother now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[17]   Mother challenges the trial court’s termination of her parental rights to her

       Child. The Fourteenth Amendment to the United States Constitution protects

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

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

       “A parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v.

       Granville, 530 U.S. 57, 65 (2000)). However, parental rights “are not absolute

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

       disposition of a petition to terminate parental rights.” Id. If “parents are unable

       or unwilling to meet their parental responsibilities,” termination of parental

       rights is appropriate. Id. We recognize 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 efforts to protect the integrity of the natural

       relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 9 of 16
       Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty.

       Office of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct. App. 2006)).


[18]   Indiana courts rely on a “deferential standard of review in cases concerning the

       termination of parental rights” due to the trial court’s “unique position to assess

       the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.

       dismissed. Our court neither reweighs evidence nor assesses the credibility of

       witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.

       2013). We consider only the evidence and any reasonable inferences that

       support the trial court’s judgment, and we accord deference to the trial court’s

       “opportunity to judge the credibility of the witnesses firsthand.” Id.


                                  I. Termination of Parental Rights Statute

[19]   In order to terminate a parent’s rights to his or her child, DCS must prove:


               (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.
               ****
               (iii) The child has been removed from the parent and has been
               under the supervision of a local office . . . 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 [CHINS] . . . ;

               (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.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 10 of 16
               (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 must prove each of the foregoing elements by

       clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,

       92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the

       existence of a fact to be highly probable.” Id.


[20]   It is well-established that “[a] trial court must judge a parent’s fitness as of the

       time of the termination hearing and take into consideration evidence of

       changed conditions.” Stone v. Daviess Cnty. Div. of Children & Family Servs., 656

       N.E.2d 824, 828 (Ind. Ct. App. 1995), trans. denied. In judging fitness, a trial

       court may properly consider, among other things, a parent’s substance abuse

       and lack of adequate housing and employment. McBride v. Monroe Co. OFC, 798

       N.E.2d 185, 199 (Ind. Ct. App. 2003). The trial court may also consider a

       parent’s failure to respond to services. Lang v. Starke Co. OFC, 861 N.E.2d 366,

       372 (Ind. Ct. App. 2007), trans. denied. “[H]abitual patterns of conduct must be

       evaluated to determine whether there is a substantial probability of future

       neglect or deprivation.” Stone, 656 N.E.2d at 828. A trial court “need not wait
       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 11 of 16
       until the child[] [is] irreversibly influenced by [its] deficient lifestyle such that

       [its] physical, mental and social growth is permanently impaired before

       terminating the parent-child relationship.” Id. Furthermore, “[c]lear and

       convincing evidence need not reveal that the continued custody of the parents is

       wholly inadequate for the child’s very survival. Rather, it is sufficient to show

       by clear and convincing evidence that the child’s emotional and physical

       development are threatened by the respondent parent’s custody.” K.T.K., 989

       N.E.2d at 1230.


[21]   Mother’s argument focuses on Dr. Yusupova’s testimony, who noted that if

       Mother were to restart services, she would not have to start again from the

       beginning, as an indication that Mother’s situation and mental health was

       improving. Mother’s argument is misplaced. In March 2019, a month prior to

       the DCS filing its termination petition, Mother returned to the Bowen Center,

       where she started working with Dr. Yusupova on substance abuse and

       individual therapy. Although we agree with Mother that Dr. Yusupova

       testified that Mother completed the therapy and had benefitted from it, Dr.

       Yusupova was unaware of Mother’s four positive drug screens. When

       confronted with this evidence, Dr. Yusupova opined that Mother’s level of

       therapy would have to be reassessed “[g]iven [her] continued use and her

       dishonesty in therapy.” (Tr. Vol. II, pp. 165-66).


[22]   The evidence further reflects that in May 2016, Dr. Lombard advised that

       Mother should receive “comprehensive medication management to treat her

       bipolar disorder and generalized anxiety disorder symptoms.” (Tr. Exh. p.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 12 of 16
       128). Because of her history of marijuana and synthetic marijuana use, he also

       recommended at least six months of substance abuse treatment. Mother did not

       follow these recommendations. Only when DCS filed its petition to terminate

       in April 2019 did Mother return to the Bowen Center and started participating

       in home-based services. Although Mother’s goals were to obtain housing,

       employment, and transportation, she was not compliant. Mother’s housing

       remained unstable, and since her dismissal from work release in July 2018, she

       had been living with her sister who had been an alcoholic for twenty years.

       Mother generally refused to engage in drug screens. When she did submit to a

       screen, Mother tested positive for marijuana in March and June 2019, and for

       cocaine in May 2019.


[23]   Even though Mother had been consistently attending visitation with the Child

       since November 2018, Mother continued to struggle with maintaining

       appropriate behavior and boundaries even after having been given guidelines.

       Mother was often unable to appropriately respond to Child’s behavioral issues

       during visits, instead resorting to yelling and swearing at the Child.


[24]   “Requiring trial courts to give due regard to changed conditions does not

       preclude them from finding that parents’ past behavior is the best predictor of

       their future behavior.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Mindful of

       this guideline, we note that the evidence presented clearly and convincingly

       shows that a reasonable probability exists that the conditions that led to the

       Child’s removal from Mother’s care will not be remedied. At no point during

       the proceedings did Mother exhibit a turnaround in her behavior or commence

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 13 of 16
       participation in DCS’s services. After being offered three years of reunification

       services, Mother did not improve her parenting skills. When the trial court

       granted Mother another chance in November 2018 by denying DCS’s first

       termination petition, Mother responded by ceasing to engage in services until

       March 2019, a month prior to DCS’s current termination petition being filed.

       A parent’s habitual unwillingness or lack of commitment to address parenting

       issues and to cooperate with services “demonstrates the requisite reasonable

       probability” that the removal conditions will not change. In re G.M., 71 N.E.3d

       898, 908 (Ind. Ct. App. 2017). Accordingly, the trial court was entitled to

       weigh the evidence as it found appropriate in the context of this case, and we

       conclude that the trial court’s findings support the judgment.


                                          II. Best Interests of the Child


[25]   Mother also challenges the trial court’s conclusion that termination is in the

       Child’s best interest. To determine whether termination is in a child’s best

       interests, the trial court must look to the totality of the evidence. In re A.D.S.,

       987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. The court must

       subordinate the interests of the parents to those of the child and need not wait

       until a child is irreversibly harmed before terminating the parent-child

       relationship. Id. We have previously held that the recommendation by both

       the 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 interest. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 14 of 16
[26]   Child has been with the same foster family since June 2016. He was diagnosed

       with “high functioning Asperger’s syndrome, for which he initially displayed

       behaviors such as hitting himself and hitting himself on a glass table, running

       away, and having behavioral issues at school.” (Appellant’s App. Vol. II, p.

       18). The evidence supports that this behavior has improved since he started

       living with his foster family. Based on observations at the Bowen Center where

       both Mother and Child received therapy, concerns remained that “Mother

       would not be able to handle [Child’s] behaviors, as she has historically not

       followed through with the recommendations of Bowen Center to assist her.”

       (Appellant’s App. Vol. II, pp. 18-19). FCM testified that Child has autism and

       needs stability, and therefore “it would be harmful to place him with Mom,

       because there doesn’t seem to be any stability, no transportation, no stable

       employment and housing[.]” (Appellant’s App. Vol. II, p. 22). FCM advised

       that Mother cannot take care of “an autistic child” because she “is really

       struggling to take care of herself.” (Appellant’s App. Vol. II, p. 22). The

       Child’s GAL opined that termination would be in the Child’s best interest

       because of Mother’s failure to successfully complete treatment and obtain

       sobriety, and her refusal to regularly submit to drug screens.


[27]   Here, Mother failed to avail herself of the opportunities and services offered by

       DCS to reunite with the Child and made no progress nor commitment during

       the proceedings of the case. “[C]hildren cannot wait indefinitely for their

       parents to work toward preservation or reunification.” In re E.M., 4 N.E.3d

       636, 648 (Ind. 2014). Even though “the ultimate purpose of the law is to


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 15 of 16
       protect the child, the parent-child relationship will give way when it is no longer

       in the child’s interest to maintain this relationship.” In re B.D.J., 728 N.E.2d

       195, 200 (Ind. Ct. App. 2000). Mother’s historical inability to provide a

       suitable environment for the Child, together with her current inability to do the

       same, supports the trial court’s conclusion that termination of her parental

       rights is in the best interests of the Child. Accordingly, we affirm the trial

       court’s decision.


                                              CONCLUSION
[28]   Based on the foregoing, we conclude that DCS presented sufficient evidence to

       support the trial court’s Order terminating Mother’s parental rights to the Child.


[29]   Affirmed.


[30]   Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-220 | July 22, 2020   Page 16 of 16
