MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Mar 09 2020, 9:20 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jonathan T. Feavel                                       Curtis T. Hill, Jr.
Feavel & Porter, LLP                                     Attorney General of Indiana
Vincennes, Indiana                                       Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Involuntary                                    March 9, 2020
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of:                                         19A-JT-2234
J.P. (Minor Child),                                      Appeal from the Daviess Circuit
                                                         Court
And
                                                         The Honorable Gregory A. Smith
S.P. (Mother),                                           Judge
Appellant-Respondent,                                    Trial Court Cause No.
                                                         14C01-1901-JT-3
        v.

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020                    Page 1 of 23
      Riley, Judge.


                                 STATEMENT OF THE CASE
[1]   Appellant-Respondent, S.P. (Mother), appeals the trial court’s Order

      terminating her parental rights to her minor child, J.P. (Child).


[2]   We affirm.


                                                     ISSUES
[3]   Mother presents the court with three issues, which we consolidate and restate as

      the following two issues:


              (1) Whether Mother’s due process rights were violated when the
                 Department of Child Services (DCS) filed a petition seeking
                 to terminate her parental rights more than six months after a
                 child in need of services (CHINS) dispositional decree was
                 entered; and


              (2) Whether the trial court’s Order terminating Mother’s
                 parental rights to Child was supported by the evidence.


                       FACTS AND PROCEDURAL HISTORY
[4]   Child was born to Mother and C.L. (Father)1 on June 27, 2010. In November

      2015, Child was removed from Mother’s care and adjudicated a CHINS after

      Mother retrieved her from daycare and drove while intoxicated. In November




      1
        On May 29, 2019, Father voluntarily relinquished his parental rights and consented to Child’s adoption.
      Father is not a party to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020                   Page 2 of 23
      2016 after Mother’s completion of substance abuse treatment and work with a

      parenting aide, Child was returned to Mother. Mother did not pursue any

      substance abuse or alcohol treatment after Child was returned to her.


[5]   On December 8, 2017, DCS Family Case Manager Pamela Padgett (FCM

      Padgett) went to Mother’s home to investigate reports that Mother was abusing

      drugs, she was allowing others to use drugs in the home, she was allowing a

      registered sex offender to stay in the home and spend time around Child, and

      Child was not attending school regularly. Mother admitted that she was under

      the influence of an illegal substance, and FCM Padgett confirmed that a

      registered sex offender spent time in the home, something which did not appear

      to FCM Padgett to concern Mother. Mother entered into an informal

      adjustment with DCS pursuant to which Mother agreed to undergo a substance

      abuse evaluation, follow treatment recommendations, and work with a

      parenting aide. Mother underwent a substance abuse evaluation and was

      referred to out-patient treatment at the Samaritan Center, but she did not

      attend. Mother was next referred to an intensive out-patient program at

      Brentwood Springs, but she was discharged for non-attendance. Mother was

      prescribed an anti-depressant medication as part of her treatment at Brentwood

      Springs, but she did not take it. After her discharge from Brentwood Springs,

      Mother was referred again to the Samaritan Center. Mother did not engage in

      services there.


[6]   On March 5, 2018, DCS received a report that Mother was abusing

      methamphetamine, prescription medication, and alcohol. On March 6, 2018,

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 3 of 23
      FCM Jessica Rhoads (FCM Rhoads) interviewed Child at her school. Child

      reported that she made her own meals, got herself up in the morning, and

      readied herself for school because Mother slept a lot. Child had been late for

      school or absent over the preceding days. FCM Rhoads interviewed Mother,

      who admitted drug and alcohol use. Child was removed from Mother and

      placed in foster care, where she has resided with the same foster parents ever

      since. At the time of Child’s removal, Mother was on probation for a

      conviction for domestic battery involving Father.


[7]   On March 8, 2018, DCS filed a verified petition alleging that Child was a

      CHINS. On April 19, 2018, Mother admitted that she had mental health,

      substance abuse, housing, and employment issues that rendered Child a

      CHINS. On May 3, 2018, the CHINS court entered its dispositional order

      directing Mother to participate in substance abuse and mental health

      evaluations and to follow all treatment recommendations. Mother was also

      ordered to engage in home-based case management, parenting education, and

      random drug screens.


[8]   Mother underwent an evaluation at the Samaritan Center and was diagnosed

      with alcohol dependence, methamphetamine abuse, and major depression.

      Mother was referred to individual and group therapy. Mother attended one

      individual therapy session but attended none of the group therapy sessions.

      Mother’s services at the Samaritan Center were closed in June 2018 for

      nonattendance. On June 23, 2018, Mother was arrested for residential entry

      and criminal mischief after she broke into Father’s home and destroyed some of

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 4 of 23
       his property. On October 8, 2018, Mother was evaluated at LifeSprings and

       was referred to individual therapy and the Matrix program to address her

       substance abuse issues. Mother missed appointments and continued to use

       methamphetamine and alcohol, so she was terminated from her LifeSprings

       services in November 2018. Mother continued to use illegal substances through

       December 2018. From March 2018 to December 2018, Mother submitted

       twenty-six of the forty random drug screens requested of her. Out of the

       twenty-six screens that Mother submitted, eight tested positive for

       amphetamines and methamphetamine. From March 2018 to December 2018,

       Mother attended eleven of her thirty-three scheduled sessions with her

       parenting aide.


[9]    After the CHINS petition was filed, Mother moved from her apartment in

       Washington, Indiana, to the home of the mother of her boyfriend, Chris Crays

       (Crays). The couple then moved into a motel, where Mother worked in

       exchange for a room. The couple subsequently moved to a home in Ferdinand,

       Indiana. Crays had a criminal record, and in November 2016, DCS had

       substantiated claims against him for child seduction and deviate sexual conduct

       with a step-child.


[10]   In November 2017 during Mother’s informal adjustment with DCS, she was

       working at a fast-food restaurant. From May 2018 to August of 2018, Mother

       worked at Jasper Rubber. She was discharged from Jasper Rubber after fighting

       with her superior. Late in the summer of 2018, Mother worked at the motel in



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 5 of 23
       exchange for a room, and from October 2018 to December of 2018, Mother

       worked at Kimball Electronics.


[11]   On December 30, 2018, Mother was arrested for domestic battery with a deadly

       weapon, criminal mischief, and public intoxication following an incident where

       Mother stabbed Crays with a paring knife and then attempted to beat in the

       door of the bathroom where Crays sought refuge. On January 4, 2019, DCS

       filed a petition to terminate Mother’s parental rights to Child. On January 7,

       2019, Mother was placed in a work release facility pending resolution of the

       criminal case against her.


[12]   Mother exercised parenting time with Child during the CHINS proceedings.

       Her parenting time was always supervised. Mother was advised throughout the

       CHINS case that any increase in her parenting time was dependent on

       submitting clean urine screens. Mother appeared for her January 19, 2019,

       parenting time session with Child smelling of alcohol, prompting DCS to move

       sessions from the community to a DCS facility. After Mother’s December 2018

       criminal charges and placement in work release, parenting time was reduced to

       once per month with Child’s therapist supervising. Mother returned to work

       release on February 18, 2019, after having consumed alcohol.


[13]   On May 29, 2019, and July 29, 2019, the trial court held fact-finding hearings

       on DCS’ petition to terminate Mother’s parental rights. As a result of pleading

       guilty to violating her probation and to committing domestic battery against

       Crays, Mother anticipated being eligible for home detention beginning in


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 6 of 23
       August 2019. If she was compliant with the terms of her home detention,

       Mother anticipated completing all of her sentences by the end of March 2020.

       Mother planned to serve her home detention in the Ferdinand apartment,

       where Crays was still living and his name was on the lease. Mother maintained

       that Crays would no longer be living there after her release, but she continued

       to have contact with Crays and openly questioned why DCS did not approve of

       her living with him. Mother felt that her criminal record and incarceration had

       not negatively impacted her ability to provide a stable home and effective

       parenting for Child. Mother acknowledged that when she was not incarcerated,

       she failed to make consistent progress on the issues that had caused Child’s

       removal.


[14]   Mother’s Community Corrections Case Manager, Emily Meyer (CCCM

       Meyer), testified that Mother’s compliance with the demands of work release

       had been “iffy” for her first three months, but that she had “really turned herself

       around the last two months[.]” (Transcript Vol. II, p. 220). Mother had

       started consistently attending her substance abuse treatment in mid-February

       2019. Mother had also begun individual therapy and medication through

       LifeSprings two or three weeks before the first TPR hearing. CCCM Meyer

       acknowledged that, while Mother was compliant with work release

       requirements, that could change. Mother had submitted diluted urine samples

       in February and April 2019.


[15]   Child’s Permanency Case Manager Autumn Rhoads (PCM Rhoads), who had

       been engaged with the family since March 2018, testified that she had spoken to

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 7 of 23
       Mother on numerous occasions about her continued relationship with Crays.

       The relationship concerned PCM Rhoads because of Crays’ DCS history and

       the domestic violence that had occurred between Mother and him. Mother told

       PCM Rhoads that it was her own personal decision whether to be in a

       relationship with Crays. PCM Rhoads felt that Mother was not being truthful

       about not being in a relationship and living with Crays after she was discharged

       from work release and that Mother was “not putting her child first.” (Tr. Vol.

       III, p. 12). As recently as July 10, 2019, Mother had voiced her confusion to

       PCM Rhoads about why DCS did not approve of her being with Crays. PCM

       Rhoads reported that while on work release, Mother had been fired from her

       job at a fast food restaurant for consuming alcohol and because Crays spent too

       much time there while Mother was working. It was PCM Rhoads’ opinion that

       Mother’s relationship with Crays was a barrier to moving forward to

       reunification with Child. It concerned PCM Rhoads that Mother had only

       shown improvement in the controlled environment of work release and that,

       when she was not in a controlled environment, she was not compliant with

       treatment.


[16]   PCM Rhoads also testified that, at the beginning of the CHINS case, Child had

       not been attending school regularly, she had poor grades, and it had been

       debated whether Child required an individualized education plan. When PCM

       Rhoads had interviewed Child at the beginning of the case, Child did not feel

       safe and reported that Mother was not feeding her. After her placement with

       her foster parents, Child reported that she felt safe and that her foster parents


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 8 of 23
       “let her eat every day.” (Tr. Vol. III, p. 28). As of the second fact-finding

       hearing on the termination petition, Child’s grades had improved, she did not

       require an education plan, and she was making friends. Child had been in her

       foster parents’ home for sixteen months, had a routine to follow, and worried

       less. Child was bonded to another foster child in the home and cherished being

       in a big sister role. Child wished to be adopted by her foster parents. It was

       PCM Rhoads’ opinion that adoption by the foster parents was in Child’s best

       interests.


[17]   Child’s mental health counselor testified that “stability is the number one

       factor.” (Tr. Vol. III, p. 71). She recommended no change in placement for

       Child. Child’s Court Appointed Special Advocate Ericka Frances (CASA

       Frances) also felt that adoption was in Child’s best interests because of Mother’s

       lack of demonstrated history of stability outside of a controlled environment.


[18]   On September 3, 2019, the trial court entered its Order terminating Mother’s

       parental rights to Child. Among the 117 findings of fact and conclusions

       entered by the trial court in support of its Order were the following:


               20. On April 20, 2018, the [c]ourt entered its Order on Pre-Trial
               Conference in which the [c]ourt took under advisement Mother’s
               admission that [] Child is a [CHINS] due to Mother’s mental
               health issues, substance abuse, and housing and unemployment
               instability. []


               21. On May 9, 2018, the [c]ourt entered its Order Adjudicating
               [Child] a [CHINS].


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 9 of 23
        ****


        23. On May 10, 2018, the [c]ourt entered its Dispositional Order
        as to Mother, in which . . . Mother was ordered to (1) maintain
        contact with the [FCM], (2) enroll in recommended programs,
        (3) submit to random drug screens, (4) refrain from the use of
        illicit substances, (5) find suitable housing for herself and []
        Child, [6] meet with medical/psychiatric personnel, as directed
        by the medical/psychiatric personnel and take all prescribed
        medications as directed, and [7] obey the law, etc. []


        ****


        26. During the course of the underlying CHINS case, Mother
        was referred for individual therapy, Intensive Outpatient
        Treatment (IOP), random drug screens, and a parent aide service
        to help her obtain stable housing and employment.


        ****


        41. Mother has been the subject of multiple criminal charges
        during the life of the underlying CHINS case.


        ****


        56. Mother has been compliant with programs through
        Community Corrections since approximately [April 2019] but
        did not demonstrate compliance with any services prior to her
        most recent incarceration and did not fully begin complying with
        services through Community Corrections until she had been
        incarcerated for approximately three months.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 10 of 23
        57. Mother herself acknowledged that her most recent bout of
        compliance is the most consistent she has been throughout the
        underlying CHINS case.


        58. This [c]ourt has found that Mother has been, at best, only
        partially compliant in every Order on Periodic Case Review in
        the underlying CHINS action.


        ****


        60. While services were offered by DCS, Mother did not avail
        herself of the services recommended to facilitate reunification.
        Mother has not demonstrated an ability to provide a safe and
        stable home for [] Child.


        ****


        98. DCS’ plan for [] Child is to be adopted by her current
        placement, with whom she has been placed for approximately
        [sixteen] months.


        99. [] Child’s needs are met in her current placement and []
        Child is bonded to her foster parents.


        ****


        105. [The] CASA testified, and based on that testimony which
        the [c]ourt finds credible, the [c]ourt now finds:


                 ****


                 (e) That adoption is in [] Child’s best interest.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 11 of 23
       (Appellant’s App. Vol. II, pp. 5-9, 11-12). The trial court concluded that Child

       had been removed from Mother for at least six months under a dispositional

       decree; there was a reasonable probability that the conditions that resulted in

       Child’s removal and continued placement outside of Mother’s care would not

       be remedied; there was a reasonable probability that continuation of the parent-

       child relationship posed a threat to Child’s well-being; and termination of

       Mother’s parental rights was in Child’s best interests.


[19]   Mother now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                                  I. Due Process

[20]   Mother contends that her procedural due process rights were violated by the

       timing of the filing of the petition to terminate her parental rights. When the

       State seeks the termination of a parent-child relationship, the manner in which

       it does so must comply with the requirements of the Due Process Clause. In re

       H.L., 915 N.E.2d 145, 147 (Ind. Ct. App. 2009). The cornerstone of procedural

       due process is that “[t]he parent must be afforded the opportunity to be heard at

       a meaningful time and in a meaningful manner.” Id.


[21]   Indiana Code section 31-35-2-4(b) sets out the pleading requirements for a

       petition seeking to terminate a parent’s rights to a minor child and provides in

       relevant part as follows:


               (2) The petition must allege:


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 12 of 23
               (A) that one (1) of the following is true:


               (i) The child has been removed from the parent for at least (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 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 child in need of
               services or a delinquent child[.]


       Thus, the statute establishes “waiting periods to give parents time to reunify

       with their children, and bars DCS from seeking termination until one of those .

       . . periods has passed.” Matter of Bi.B., 69 N.E.3d 464, 465 (Ind. 2017).


[22]   Here, DCS filed its termination petition almost eight months after the CHINS

       court entered its dispositional decree, and, in its petition, DCS alleged the

       waiting period set forth in subsection (b)(2)(A)(i). Mother argues that her

       procedural due process rights were violated because DCS could have afforded

       her more time and resources by waiting to file its petition under subsection

       (b)(2)(A)(iii). However, “the Due Process Clause does not empower the

       judiciary to sit as a superlegislature to weigh the wisdom of legislation.” James

       v. Pike Co., 759 N.E.2d 1140, 1143 (Ind. Ct. App. 2001). Here, DCS filed its

       petition after one of the waiting periods created by the legislature had expired.

       Mother argues that “[n]o witness testified to the necessity of filing pursuant to


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 13 of 23
       the dispositional decree option and no unique or special circumstances appear

       to be present in the instant case or history[,]” although nothing in the statute

       requires DCS to allege any circumstance other than that six months have

       passed since the entering of a dispositional decree. (Appellant’s Br. p. 17).


[23]   Mother does not allege any true procedural irregularities depriving her of an

       opportunity to be heard in a meaningful time and manner in this case. See In re

       H.L., 915 N.E.2d at 147. In addition, Mother’s contention that due process

       accorded her a right to more time for services is unpersuasive because “a failure

       to provide services does not serve as a basis on which to directly attack a

       termination order as contrary to law.” In re J.W., Jr., 27 N.E.3d 1185, 1190

       (Ind. Ct. App. 2015), trans. denied. Accordingly, we conclude that Mother’s

       procedural due process rights were not violated when DCS filed its petition over

       six months after the CHINS court entered its dispositional decree, as permitted

       by statute.


                                         II. Sufficiency of the Evidence

                                               A. Standard of Review

[24]   Mother argues that the trial court’s Order terminating her parental rights was

       not supported by the evidence. It is well-settled that when reviewing the

       evidence supporting the termination of parental rights, we neither reweigh the

       evidence nor determine the credibility of witnesses. In re E.M., 4 N.E.3d 636,

       642 (Ind. 2014). In addition, we consider only the evidence that supports the

       judgment and the reasonable inferences to be drawn from that evidence. Id.

       “We confine our review to two steps: whether the evidence clearly and
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 14 of 23
       convincingly supports the findings, and then whether the findings clearly and

       convincingly support the judgment.” Id. We must give due regard to the trial

       court’s opportunity to judge the credibility of witnesses firsthand, and we do not

       set aside the trial court’s findings or judgment unless it is clearly erroneous. Id.


                                B. Termination of Mother’s Parental Rights

[25]   “[O]ne of the most valued relationships in our culture” is that between a parent

       and his or her child. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied.

       Indeed, “[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, 120 S.Ct. 2054, 147 L.E.d2d 49

       (2000)). Accordingly, the Fourteenth Amendment to the United States

       Constitution safeguards “the traditional right of parents to establish a home and

       raise their children.” Id. Nevertheless, parental interests are not absolute;

       rather, termination of parental rights is appropriate when parents are unable or

       unwilling to meet their parental responsibilities. In re A.B., 887 N.E.2d 158, 164

       (Ind. Ct. App. 2008).


[26]   Termination of parental rights is an extreme sanction that is intended as a “last

       resort” and is available only when all other reasonable efforts have failed. C.A.

       v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 91 (Ind. Ct. App. 2014). As such,

       before a termination of parental rights is merited, the State is required to prove

       a host of facts by clear and convincing evidence, the most relevant for our

       purposes being that there is a reasonable probability that the conditions which

       resulted in the child’s removal and continued placement outside the home will

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 15 of 23
       not be remedied by the parents and that termination is in the best interests of

       the child. Ind. Code §§ 31-35-2-4(b)(2)(B)(i), (C); 31-37-14-2. We address each

       of those factors in turn.


                         1. Reasonable Probability Conditions Will Not Be Remedied

[27]   Before turning to the evidence supporting the trial court’s determination, we

       note that the trial court also found that a reasonable probability existed that the

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

       being, another of the factors that may be shown under subsection 31-35-2-

       4(b)(2)(B). This subsection is written in the disjunctive, so a trial court need

       only find one of the factors enumerated there. Mother does not challenge the

       validity of this conclusion by the trial court, and she has, therefore, waived her

       claim that DCS failed to meet its evidentiary burden under this subsection. See

       A.D.S. v. Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App.

       2013) (finding issue waived for failure to make a cogent argument), trans. denied.

       Nevertheless, given the importance of the interests involved, we will address the

       evidence supporting the trial court’s conclusion regarding the probability that

       the conditions that merited removal will not be remedied.


[28]   When reviewing a trial court’s determination that the conditions that resulted in

       the child’s removal will not be remedied, we engage in a two-step analysis.

       E.M., 4 N.E.3d at 642-43. First, we must identify the conditions that led to

       removal; second, we determine whether there is a reasonable probability that

       those conditions will not be remedied. Id. at 643. When engaging in the

       second step of this analysis, a trial court must judge a parent’s fitness as of the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 16 of 23
       time of the termination proceeding, taking into account evidence of changed

       conditions, and balancing any recent improvements against habitual patterns of

       conduct to determine whether there is a substantial probability of future neglect

       or deprivation. Id. This delicate balance is entrusted to the trial court, and a

       trial court acts within its discretion when it weighs a parent’s prior history more

       heavily than efforts made only shortly before termination. Id. “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.”

       Id. In making its determination, the trial court may consider the services

       offered to the parents and the parents’ response to those services. In re W.M.L.,

       82 N.E.3d 361, 367 (Ind. Ct. App. 2017).


[29]   Here, the primary issue necessitating removal of Child was Mother’s drug and

       alcohol use. DCS’s initial involvement with this family and subsequent CHINS

       determination in 2015, the 2017 DCS informal adjustment, and the March 6,

       2018, removal of Child from Mother’s care were all the result of Mother

       abusing alcohol and illegal substances. Mother was offered substance abuse

       evaluations, IOP, random drug screens, and individual and group therapy to

       address her substance abuse. Mother was unsuccessfully discharged from

       treatment at the Samaritan Center and Brentwood Springs following her

       informal adjustment. Mother was referred again to Samaritan Center but never

       engaged in services there. Following the March 6, 2018, removal of Child,

       Mother failed to engage in the referred group and individual therapy at

       Samaritan Center recommended to treat her substance abuse issues, and she


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 17 of 23
       was yet again unsuccessfully discharged. In October of 2018, Mother was

       referred to programs at LifeSprings, but she continued to use methamphetamine

       and alcohol and was unsuccessfully discharged from those services as well.


[30]   Thus, Mother had a pattern of unsuccessful treatment throughout the CHINS

       proceedings. “We have often noted that evidence of a parent’s pattern of

       unwillingness or lack of commitment to address parenting issues and to

       cooperate with services demonstrates the requisite reasonable probability that

       the conditions will not change.” S.S., 120 N.E.3d 605, 611 (Ind. Ct. App.

       2019). Nevertheless, Mother argues that her failures were due to not being

       placed in the in-patient treatment she requested but was denied after being told

       that DCS did not provide that service. This argument is unpersuasive for at

       least two reasons. First, there was conflicting testimony regarding whether

       DCS would provide in-patient treatment. PCM Rhoads testified that DCS had

       spoken to Mother on August 9, 2018, about entering in-patient treatment which

       they would find for her if she wished, but that Mother had declined that

       treatment. This is the evidence that supports the trial court’s findings and

       judgment, so it is the only evidence we consider on appeal. See In re E.M., 4

       N.E.3d at 642. In addition, the failure of DCS to provide a particular service

       during the underlying CHINS proceedings cannot be the basis for attacking the

       validity of an order terminating parental rights. See In re J.W., Jr., 27 N.E.3d at

       1190.


[31]   After Mother was incarcerated following her December 30, 2018, arrest, she

       was again referred for programs and treatment. Mother argues that the trial

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 18 of 23
       court failed to sufficiently credit her progress while incarcerated. However, it

       was within the trial court’s discretion to weigh Mother’s history of failed

       compliance with substance abuse treatment more heavily than any recent

       improvements. E.M., 4 N.E.3d at 643. Indeed, although Mother had shown

       some improvements after being incarcerated, she came to a parenting time

       session on January 19, 2019, smelling of alcohol, tested positive for alcohol on

       February 18, 2019, and submitted a diluted urine sample as late as April 2019.

       All of these events occurred after the petition to terminate her parental rights

       had been filed, and all occurred even though she was in the controlled

       environment of her work release placement. PCM Rhoads testified that she

       was concerned that Mother did not make any progress in addressing her

       substance abuse issues when she was free in society and had only shown

       improvement after being placed in work release. The trial court reasonably

       concluded in light of this evidence that Mother’s long-term history of failure to

       address her substance abuse outweighed her very recent improvements and,

       thus, that there was a reasonable probability that this condition of removal

       would not be remedied.


[32]   We come to the same conclusions regarding the other reasons for removal—

       Mother’s mental health, her lack of stable housing, and the instability of her

       employment. Mother was prescribed an anti-depressant as part of the DCS

       informal adjustment, but she did not take it. Following Child’s removal,

       Mother was diagnosed with depression after an evaluation at the Samaritan

       Center but did not engage in the therapy to which she was referred. Mother did


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 19 of 23
       not attend therapy consistently until after being incarcerated. She did not begin

       taking her medication consistently until two or three weeks before the May 29,

       2018, fact-finding hearing in this matter. The trial court was not obligated to

       overlook Mother’s long-term pattern of failing to address her mental health in

       favor of this recent short-term compliance. See id.


[33]   In addition, Mother made little progress addressing her housing and

       employment stability. Mother moved four times during the CHINS

       proceedings. She only attended one-third of the parenting aide sessions meant

       to help her with her housing. Mother’s plan after finishing work release was to

       live in the apartment where Crays, the boyfriend who she had been arrested for

       stabbing with a paring knife and who himself had a substantiated DCS history

       for sexual activity with a child, was still living and had his name on the lease.

       Mother was not truthful with her service providers about ending the

       relationship and professed not to understand why this living arrangement would

       not be approved by DCS.


[34]   Mother also failed to maintain stable employment, as, prior to her December

       30, 2018, arrest she had at least four jobs in quick succession. She was fired

       from her job at Jasper Rubber for fighting with her superior. While she was on

       work release, Mother worked at a fast-food restaurant for three months but was

       fired for drinking alcohol on the job and allowing Crays to loiter there.

       Although she was employed at the time of the second fact-finding hearing, the

       trial court was within its discretion to recognize and credit Mother’s long-term

       history of employment instability. See id. Given the evidence of Mother’s long-

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 20 of 23
       term failure to address her substance abuse, mental health, housing, and

       employment issues, we find that the trial court’s conclusion that there was a

       reasonable probability that the conditions meriting removal would not be

       remedied was supported by the evidence.


                                               2. Child’s Best Interests

[35]   Mother also challenges the trial court’s conclusion that termination of her

       parental rights was in Child’s best interests. Our supreme court has recently

       recognized that one of the most difficult aspects of a termination of parental

       rights determination is the issue of whether the termination is in the child’s best

       interests. Id. at 647 (noting that the question “necessarily places the children’s

       interest in preserving the family into conflict with their need for permanency”).

       The trial court’s determination that termination was in the child’s best interests

       requires it to look at the totality of the evidence of a particular case. In re D.D.,

       804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. “In doing so, the trial

       court must subordinate the interests of the parents to those of the children

       involved.” Id. The court is not required to wait until the child is irreversibly

       harmed before terminating the parent’s rights. McBride v. Monroe Cnty. Office of

       Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In addition, a

       recommendation by the case manager or the child’s advocate that the parent’s

       rights should be terminated, together with evidence that the conditions that

       merited removal will not be remedied, is sufficient to sustain a trial court’s

       determination that termination is in the child’s best interests. In re J.C., 134

       N.E.3d 419, 433 (Ind. Ct. App. 2019).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 21 of 23
[36]   We have already concluded that there was sufficient evidence that there was a

       reasonable probability that the conditions meriting Child’s removal would not

       be remedied. PCM Rhoads felt that Child’s adoption by her foster parents was

       in Child’s best interests. CASA Frances also testified that adoption by foster

       parents was in Child’s best interests because Mother did not have a

       demonstrated long-term history of stability outside of a controlled environment.

       This evidence alone was sufficient to support the trial court’s “best interests”

       determination. See id.


[37]   Other evidence buttressed the trial court’s conclusion. Child was thriving in the

       home of her foster parents. Her educational concerns had been resolved, she

       was attending school regularly, had a routine, and felt safe. Child was bonded

       to both foster parents and to the other foster child in the home, whom Child

       looked upon as her little sister. Child was receiving the stability in her foster

       home that Child’s therapist felt was “the number one factor[]” for Child. (Tr.

       Vol. III, p. 71). We conclude that the totality of the evidence supports the trial

       court’s findings and conclusions that termination of Mother’s parental rights

       was in Child’s best interests. See In re D.D., 804 N.E.2d at 267.


                                             CONCLUSION
[38]   Based on the foregoing, we conclude that Mother’s due process rights were not

       infringed upon by the timing of the filing of DCS’ petition to terminate her

       parental rights and that the evidence supported the trial court’s Order.


[39]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 22 of 23
Baker, J. and Brown, J. concur




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020   Page 23 of 23
