MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Jan 29 2019, 8:56 am
regarded as precedent or cited before any                                        CLERK
court except for the purpose of establishing                                 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
Jeffery M. Haupt                                             Curtis T. Hill, Jr.
Law Office of Jeffery Haupt                                  Attorney General of Indiana
South Bend, Indiana
                                                             Robert J. Henke
                                                             Natalie F. Weiss
                                                             Deputy Attorneys General
                                                             Indianapolis, Indiana



                                              IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the Termination                             January 29, 2019
of the Parent-Child Relationship                             Court of Appeals Case No.
of S.H., Mother, A.M., Father,1                              18A-JT-1813
and M.M. and L.M., Children:                                 Appeal from the
S.H.,                                                        St. Joseph Probate Court
                                                             The Honorable
Appellant-Respondent,
                                                             James Fox, Judge
         v.                                                  The Honorable
                                                             Graham Polando, Magistrate

Indiana Department of Child
Services,




1
 We note that, although Father’s parental rights were also terminated, he does not join in this appeal.
However, under Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019                     Page 1 of 23
      Appellee-Petitioner.                                        Trial Court Cause Nos.
                                                                  71J01-1709-JT-81
                                                                  71J01-1710-JT-104




      Kirsch, Judge.


[1]   S.H. (“Mother”) appeals the juvenile court’s order terminating her parental

      rights to her minor children, M.M., born on September 24, 2002, and L.M.,

      born on April 11, 2009 (together, “Children”).2 Mother raises two issues on

      appeal, which we restate as:


              I.       Whether the juvenile court abused its discretion when it
                       denied her motion to continue the termination hearing;
                       and


              II.      Whether the juvenile court’s judgment terminating her
                       parental rights to Children was clearly erroneous.


[2]   We affirm.




      2
        Father’s parental rights were terminated on January 11, 2018, but because he does not appeal, we only set
      forth those facts necessary to Mother’s appeal

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019                 Page 2 of 23
                                  Facts and Procedural History
[3]   Mother has a history with the Indiana Department of Child Services (“DCS”).

      Mother’s first child (who is not a subject of this appeal) was removed from

      Mother’s care in 2006 because the child tested positive for cocaine at birth, and

      Mother, subsequently, signed a voluntary termination of her parental rights to

      this child. Tr. Vol. 2 at 97. In May 2008, Children were placed with their great-

      grandmother after Mother tested positive for methamphetamine and THC. Tr.

      Vol. 3 at 21. Children were adjudicated to be children in need of services

      (“CHINS”) as a result. Tr. Vol. 5 at 2-10, 26-30. On July 15, 2009, Children

      were placed in relative foster care when Mother’s substance abuse counselor

      believed Children were in danger because of Mother’s recent relapse. Tr. Vol. 3

      at 21. Wardship for both Children was released on May 13, 2010, and the

      CHINS proceedings were closed. Tr. Vol. 5 at 24-25, 43-44.


[4]   In September 2016, DCS received a report that Mother had been arrested for

      possession of cocaine and narcotics and that Children were living with their

      eighty-year-old maternal great-grandmother (“Grandmother”), who had very

      limited mobility and was receiving dialysis three times a week. Tr. Vol. 3 at 17.

      The report also indicated that Children’s father (“Father”) was homeless and

      receiving supplemental security income for methamphetamine-induced

      psychosis. Id. DCS met with Mother, who reported that she had overdosed on

      heroin on June 20, 2016. Id. at 33. On October 13, 2016, DCS met with

      Grandmother and observed her home to be organized, but that Grandmother’s

      mobility was limited. Id. at 34. Mother was released from incarceration on

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 3 of 23
      October 17, 2016, but DCS was unable to locate her. Id. On November 10,

      2016, DCS again went to Grandmother’s home and observed the home to be in

      “complete disarray” and found broken glass in one of the beds, along with food

      items and a lighter. Id. Grandmother told DCS that Mother was visiting

      Children in the evenings. Id. She also told DCS that M.M. frequently missed

      school and would often stay with friends in a different town. Id. A few days

      later, DCS again met with Grandmother, who disclosed that, during the last

      meeting, Mother had been hiding in a closet. Id.


[5]   After doing an assessment, DCS filed a CHINS petition on November 17, 2016,

      alleging that Mother was unable to meet the needs of Children. Id. at 32-36.

      On November 18, Children were removed from Mother’s care and placed with

      maternal grandfather (“Grandfather”). Id. at 39-40. On December 15, 2016,

      Mother admitted the allegations in the CHINS petition, which the juvenile

      court accepted, and Children were adjudicated to be CHINS. In its

      dispositional order, the juvenile court maintained Children’s removal and

      placement outside of Mother’s home. Id. at 68. The juvenile court ordered

      Mother to do the following:


              (1) contact the family case manager (“FCM”) every week to
              allow FCM to monitor compliance;


              (2) allow FCM or other service providers to make announced or
              unannounced visits;


              (3) keep all appointments with any service provider or DCS or
              provide advance notice with a good cause;

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 4 of 23
        (4) sign any releases necessary for FCM to monitor compliance
        with the order;


        (5) maintain suitable, safe, and stable housing with adequate
        bedding, functional utilities, adequate food;


        (6) secure and maintain a legal and stable source of income;


        (7) not use, consume, manufacture, trade, distribute or sell any
        illegal controlled substances, and only take prescription
        medications for which a valid prescription exists and only in the
        doses specified in the prescription, and not permit illegal
        controlled substances in the home or in the presence of Children;


        (8) reimburse DCS expenses for services to benefit Children in
        the amount as established by court order;


        (9) complete a parenting assessment and successfully complete all
        recommendations developed as a result of the assessment;


        (10) complete a substance abuse assessment and follow all
        treatments and successfully complete all treatment
        recommendations developed as a result of the assessment;


        (11) complete a psychological evaluation as referred and
        approved by DCS and successfully complete any
        recommendations that result from the evaluation;


        (12) meet all personal medical and mental health needs in a
        timely and complete manner;


        (13) meet all the medical and mental health needs of Children in
        a timely and complete manner; and

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 5 of 23
              (14) attend all scheduled visitations with Children and comply
              with all visitation rules and procedures set forth.


      Id. at 71.


[6]   On October 30, 2017, DCS filed a petition to terminate Mother’s parental rights

      to Children. On March 22, 2018, the juvenile court set an evidentiary hearing

      on the petition for June 1, 2018. On May 25, 2018, Mother filed a motion to

      continue the hearing, stating that she had been recently accepted into a

      residential program at the YWCA for substance abuse treatment. Appellant’s

      App. Vol. 2 at 89. A hearing was held on the motion, where Mother’s counsel

      requested that the juvenile court give Mother “a chance to work through that

      program. It may not change any outcome on this particular matter. . . . I do

      feel that the continuance would allow . . . her to continue to work with me on a

      defense on this particular matter.” Tr. Vol. 2 at 4. The juvenile court denied the

      motion to continue, reasoning that Mother was actually asking for more time to

      remedy the conditions resulting in removal or continued placement outside the

      home and that such an inquiry was “the proper subject of the [termination]

      hearing itself.” Id. at 6.


[7]   At the June 1, 2018 evidentiary hearing on the petition to terminate Mother’s

      parental rights, the following evidence was presented. Mother had a significant

      and lengthy history of substance abuse beginning at the age of twelve when she

      started using cocaine. Tr. Vol. 2 at 98. She began using heroin at the age of

      seventeen and continued to use drugs thereafter. Id. at 98-100. By July 2016,

      Mother was using heroin almost daily. Id. at 100. Mother also had a criminal
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 6 of 23
      history that included a charge of operating a vehicle while intoxicated on June

      21, 2016, convictions for unlawful possession of a narcotic drug and possession

      of a syringe in September 2016, and a conviction for visiting a common

      nuisance in April 2017. Id. at 51-52, 101-02. At the time of the hearing,

      Mother also had a pending charge of conversion for which she had been

      arrested in March 2018. Id. at 102.


[8]   FCM David Mickelson (“FCM Mickelson”) testified as to Mother’s contact

      with him and stated that there “wasn’t a lot [of communication].” Id. at 43-44.

      There were long periods of time where Mother would not communicate at all

      with him, even when he attempted to contact her every day. Id. at 44-45.

      When FCM Mickelson went to Mother’s residence for visits, whether

      announced or unannounced, Mother would not always answer the door, and

      she did not keep DCS updated as to where she was staying. Id. at 45-46.

      Mother canceled several appointments with the court appointed special

      advocate (“CASA”) and did not attend a scheduled meeting with FCM

      Mickelson’s supervisor. Id. at 46. FCM Mickelson testified that Mother missed

      thirteen of her scheduled supervised visits with Children, and she gave

      advanced notice of her absence for only five of those missed visits. Id.


[9]   FCM Mickelson testified that Mother never obtained suitable and safe housing

      as required under the dispositional order. Id. She never maintained her own

      housing and, instead, moved frequently, either living in the homes of

      Grandmother, her boyfriend, or her boyfriend’s mother. Id. at 46-47. At the

      time of the termination hearing, Mother was living at the YWCA. Id. at 47.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 7 of 23
       Likewise, during the pendency of this case, Mother never obtained a stable

       source of income as required. Id. at 20. Brandon Duke (“Duke”), who worked

       at Lifeline Youth Services, attempted to work with Mother on obtaining stable

       employment and homemaking services. Id. at 17, 19-20. Although Mother

       participated in the intake session, she told Duke that she was not looking for

       employment because it was too overwhelming, and she wanted to focus on

       getting Children back and having visitations with them. Id. at 20. Duke also

       attempted to work on budgeting with Mother, but she refused to participate. Id.

       Mother did not engage in any homemaking services after the initial intake

       session. Id.


[10]   Evidence was also presented regarding Mother’s substance abuse, which

       showed that Mother continued to use illegal drugs after the dispositional order

       was entered. In 2017, she was charged with operating a vehicle while

       intoxicated, possession of narcotics, visiting a common nuisance, and unlawful

       possession of a syringe. Id. at 49, 51, 101. Mother admitted that she had a

       problem with using methamphetamine and heroin. Id. at 56, 101. Throughout

       the proceedings, Mother submitted to drug screening, and repeatedly tested

       positive for different substances, including THC, cocaine, methamphetamine,

       and amphetamines. Tr. Vol. 5 at 57-103, 154-92. Between January 11 and

       March 22, 2018, Mother failed to submit to any drug screens and did not

       respond when contacted to do so. Tr. Vol. 2 at 50.


[11]   Mother completed parenting and psychological assessments, but FCM

       Mickelson testified that she failed to complete the recommendations resulting

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 8 of 23
       from those assessments. Id. at 53-54. Gary Robinson, an addictions specialist

       at The Bowen Center, conducted a substance abuse assessment in November

       2017 and diagnosed Mother with Heroin Use Disorder. Id. at 12-13. He

       recommended that Mother attend one substance abuse group and one

       individual session weekly for sixty to ninety days. Mother did not attend any

       individual sessions and only attended three group sessions. Id. at 13. Mother

       entered into an intensive out-patient program at the Center for Positive Change

       but was unsuccessfully discharged from the program. Id. at 54-55. FCM

       Mickelson testified that Mother had a pattern of starting treatment and then

       being unsuccessfully discharged. Id. at 57. Mother went into the residential

       program at the YWCA in May 2018, just prior to the termination hearing.

       Appellant’s App. Vol. 2 at 89. FCM Mickelson was not able to testify with

       certainty as to whether Mother was meeting her personal medical and mental

       health needs and was concerned because Mother had been prescribed Suboxone

       for her heroin addiction, but the drug did not show up on several of her drug

       screens. Tr. Vol. 2 at 55.


[12]   As for visitations with Children, evidence was presented that visitations were

       originally scheduled two days per week for two hours, and Duke provided

       Mother with transportation to those visits and supervised them. Id. at 17-18.

       Duke testified that Children had positive interactions with Mother during most

       of the supervised visits. Id. at 23. Mother attended the visits regularly at first,

       but she missed a total of thirteen visits out of approximately forty that were

       scheduled since the CHINS petition was filed. Id. at 18, 46. After she missed

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 9 of 23
       three or four in a row, her visitation services with Duke were cancelled in

       accordance with the policy that prohibited missing multiple visits. Id. at 18.

       Visitation services were later resumed, but suspended after December 6, 2017,

       when Mother came to a supervised visit under the influence of alcohol. Id. at

       56.


[13]   Shannon Johnson (“Johnson”), Children’s therapist, began providing services

       in December of 2016. Id. at 26. Johnson testified that M.M. had a history of

       engaging in self-harm and had cut herself on several occasions and attempted to

       overdose on Ibuprofen. Id. at 29. Johnson also testified that M.M. recently

       started drinking alcohol, using marijuana, and having suicidal thoughts and

       that, at one point, M.M. was walking on railroad tracks because she “wanted to

       try to get hit by a train.” Id. at 30. M.M. told Johnson that she had both

       positive and negative feelings about Mother and that she was aware that

       Mother came to a visit while intoxicated and had a bottle of alcohol in her

       purse and that Mother had used drugs in front of her. Id. at 31, 33. Children’s

       CASA testified that, although she had not questioned Children about their

       relationship with Mother, both Children informed her that they wanted to stay

       with their grandparents. Id. at 94.


[14]   Both Johnson and the CASA testified that Children were doing well in their

       current placement and had bonded with their grandparents. Id. at 33-34, 92.

       Other testimony established that L.M. had been participating in gymnastics and

       making friends at school and that M.M. had a job at McDonald’s, and she was

       proud to be working and making money. Id. at 34-35. Both FCM Mickelson

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 10 of 23
       and the CASA testified that termination would be in Children’s best interests

       because Children needed permanency and stability in their lives, which they

       were getting from living with their grandparents. Id. at 64, 92-93. DCS’s plan

       for Children was adoption. Id. at 94.


[15]   At the conclusion of the hearing, the juvenile court took the matter under

       advisement. On July 19, 2018, it issued its order terminating Mother’s parental

       rights to Children. Mother now appeals.


                                      Discussion and Decision

                                        I.       Motion to Continue
[16]   Generally speaking, a trial court’s decision to grant or deny a motion to

       continue is subject to abuse of discretion review. In re K.W., 12 N.E.3d 241,

       243-44 (Ind. 2014) (citing Rowlett v. Vanderburgh Cty. Office of Family & Children,

       841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied). “An abuse of

       discretion may be found in the denial of a motion for a continuance when the

       moving party has shown good cause for granting the motion,” but “no abuse of

       discretion will be found when the moving party has not demonstrated that he or

       she was prejudiced by the denial.” Id.


[17]   Mother contends that the juvenile court abused its discretion when it denied her

       motion to continue the termination hearing to allow her time to complete the

       residential program at the YWCA that she was enrolled in at the time of the

       hearing. She asserts that the juvenile court should have granted her motion

       because the brief continuance requested would not have prejudiced DCS, but

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 11 of 23
       the denial of her motion was prejudicial to her. Mother argues that the

       approximately twelve months between the commencement of the CHINS case

       and the filing of the termination petition was not a lengthy amount of time, and

       a brief continuance would not have caused undue hardship to Children.


[18]   In Rowlett, 841 N.E.2d 615, our Supreme Court found that good cause was

       shown to grant a continuance in order to provide a parent with an opportunity

       to participate in services offered by DCS that were directed at reunification. Id.

       at 619. There, the father requested a continuance because he was incarcerated

       and would not be released until six weeks after the termination hearing. Id.

       The trial court denied his continuance, but on review, our Supreme Court

       found that the trial court abused its discretion, reasoning that because the father

       was imprisoned, he had not had the opportunity to benefit from services offered

       by DCS. Id. at 618-20. The Court found the denial of a continuance

       particularly harsh because the father had successfully participated in numerous

       programs offered by the correctional facility while he was incarcerated. Id. at

       619.


[19]   Here, unlike in Rowlett, from the time the dispositional order was issued,

       Mother had the opportunity to participate in, and benefit from, services directed

       at reunification. However, contrary to her contentions that she “was able to

       show some compliance with services,” Appellant’s Br. at 12, Mother failed to

       take advantage of these services. Accordingly, Mother has failed to

       demonstrate a “good cause” for granting her motion to continue the

       termination hearing.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 12 of 23
[20]   Mother argues that she was prejudiced by the denial of her motion to continue

       because a continuance would give her the opportunity to complete her

       residential substance abuse program, and she further asserts that the nineteen-

       month-period of time since the CHINS petition was filed was an insufficient

       amount of time to prove her ability to parent Children. However, in the time

       since the CHINS petition was filed, Mother failed to complete any of the

       services offered by DCS, failed to consistently attend visits with Children, and

       continued to use illegal drugs and commit criminal offenses. Although she was

       in a residential treatment program at the time of the termination hearing,

       Mother did not begin the program until only a few weeks before the termination

       hearing occurred. At that time, Mother had already had almost one and a half

       years to participate and complete services, and she failed to do. We conclude

       that Mother has not shown good cause for granting her motion to continue, nor

       has she shown prejudice. The trial court did not abuse its discretion when it

       denied Mother’s motion to continue the termination hearing.


                                         II.     Sufficient Evidence
[21]   As our Supreme Court has observed, “Decisions to terminate parental rights are

       among the most difficult our trial courts are called upon to make. They are also

       among the most fact-sensitive—so we review them with great deference to the

       trial courts[.]” E.M. v. Ind. Dep’t of Child Servs., 4 N.E.3d 636, 640 (Ind. 2014).

       While the Fourteenth Amendment to the United States Constitution protects

       the traditional right of a parent to establish a home and raise his child, and

       parental rights are of a constitutional dimension, the law allows for the

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 13 of 23
       termination of those rights when a parent is unable or unwilling to meet his

       responsibility as a parent. Bester v. Lake Cty. Office of Family & Children, 839

       N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.

       2001), trans. denied. Parental rights are not absolute and must be subordinated

       to the child’s interests in determining the appropriate disposition of a petition to

       terminate the parent-child relationship. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct.

       App. 2013). The purpose of terminating parental rights is not to punish the

       parent but to protect the child. In re T.F., 743 N.E.2d at 773. Termination of

       parental rights is proper where the child’s emotional and physical development

       is threatened. Id. The juvenile court need not wait until the child is irreversibly

       harmed such that his physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. Id.


[22]   When reviewing a termination of parental rights case, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,

       149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and

       reasonable inferences that are most favorable to the judgment. Id. Moreover,

       in deference to the trial court’s unique position to assess the evidence, we will

       set aside the court’s judgment terminating a parent-child relationship only if it is

       clearly erroneous. Id. at 148-49. A judgment is clearly erroneous only if the

       legal conclusions made by the juvenile court are not supported by its findings of

       fact, or the conclusions do not support the judgment. In re S.P.H., 806 N.E.2d

       874, 879 (Ind. Ct. App. 2004).



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 14 of 23
[23]   Where, as here, the juvenile court entered specific findings and conclusions, we

       apply a two-tiered standard of review. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct.

       App. 2008), trans. denied. First, we determine whether the evidence supports the

       findings, and second, we determine whether the findings support the judgment.

       Id. A finding is clearly erroneous only when the record contains no facts or

       inferences drawn therefrom that support it. Id. If the evidence and inferences

       support the trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t of Child

       Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.


[24]   Before an involuntary termination of parental rights may occur, the State is

       required to allege and prove, among other things:


               (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.


               (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.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 15 of 23
       Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these

       allegations in termination cases “is one of ‘clear and convincing evidence.’” In

       re H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a

       petition described in section 4 of this chapter are true, the court shall terminate

       the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).


[25]   Mother argues that the juvenile court erred in finding that DCS met its burden

       of proof to support termination of her parental rights. Specifically, Mother

       contends that DCS failed to prove that there was a reasonable probability that

       the conditions that resulted in Children’s removal or the reasons for placement

       outside of the home would not be remedied because, although she struggled to

       fully comply with the requirements under the dispositional order, she asserts

       that she did complete certain aspects of services and maintained visits with

       Children. She points to the fact that, at the time of the hearing, she was in a

       residential program through the YWCA that she had found on her own and

       was showing promise in combating her addiction issues. Mother further claims

       that DCS failed to prove that termination was in the best interest of Children

       because evidence was presented that, during visitations with Children, Mother’s

       behavior was “mostly appropriate,” and Children enjoyed the visits and that the

       juvenile court ignored the positives in the relationship between Mother and

       Children. Appellant’s Br. at 22.


                                         Remediation of Conditions

[26]   In determining whether there is a reasonable probability that the conditions that

       led to a child’s removal and continued placement outside the home would not
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 16 of 23
be remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child

Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what

conditions led to the child’s placement and retention in foster care, and, second,

we determine whether there is a reasonable probability that those conditions

will not be remedied. Id. In the second step, the trial court must judge a

parent’s fitness at the time of the termination proceeding, taking into

consideration evidence of changed conditions and balancing a parent’s recent

improvements against “‘habitual pattern[s] of conduct to determine whether

there is a substantial probability of future neglect or deprivation.’” E.M., 4

N.E.3d at 643 (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule,

“trial courts have properly considered evidence of a parent’s prior criminal

history, drug and alcohol abuse, history of neglect, failure to provide support,

and lack of adequate housing and employment.” A.F. v. Marion Cty. Office of

Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. In

addition, DCS need not provide evidence ruling out all possibilities of change;

rather, it need establish only that there is a reasonable probability the parent’s

behavior will not change. In re Involuntary Termination of Parent-Child

Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust

that delicate balance to the trial court, which has discretion to weigh a parent’s

prior history more heavily than efforts made only shortly before termination.”

E.M., 4 N.E.3d at 643. When determining whether the conditions for the

removal would be remedied, the trial court may consider the parent’s response

to the offers of help. A.F., 762 N.E.2d at 1252.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 17 of 23
[27]   Here, the conditions that led to Children’s removal from Mother’s care were

       Mother’s substance abuse issues and related pending criminal charges.

       Appellant’s App. Vol. 2 at 61, 66. During the assessment by DCS, it was

       discovered that Children were staying with eighty-year-old Grandmother who

       had limited mobility and was receiving dialysis three times a week and that

       Mother was visiting Children in the evenings. Tr. Vol. 3 at 17, 34. The home

       was observed to be in “complete disarray” with broken glass, food items and a

       lighter in one of the beds. Id. at 34. It was also discovered that M.M.

       frequently missed school and would often stay with friends in a different town.

       Id.


[28]   As a result of the CHINS adjudication, Mother was ordered to participate in

       many different services, to maintain stable housing and employment, and to not

       use illegal drugs. However, the evidence presented at the termination hearing

       showed that Mother failed to obtain adequate housing or employment and had

       told a service provider that she was not looking for employment while the case

       was pending. Tr. Vol. 2 at 20, 46-47. Mother failed to remain in contact with

       DCS and other service providers. Id. at 43-46. Although Mother completed

       parenting and psychological assessments, she failed to complete the

       recommendations resulting from those assessments. Id. at 53-54. Following

       completion of a substance abuse assessment, it was recommended that Mother

       attend one group and one individual session weekly for sixty to ninety days; she

       did not attend any individual sessions and only attended three group sessions.

       Id. at 13. Mother later entered an intensive out-patient program but was


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 18 of 23
       unsuccessfully discharged. Id. at 54-55. FCM Mickelson testified that Mother

       had a pattern of starting treatment and then being unsuccessfully discharged.

       Id. at 57. Mother went into the residential program at the YWCA in May 2018,

       just prior to the termination hearing. Appellant’s App. Vol. 2 at 89.


[29]   Additionally, although evidence was presented that Children had positive

       interactions with Mother during most of the supervised visits, Mother missed a

       total of thirteen visits, and after she missed three or four in a row, her visitation

       services were cancelled. Id. at 18, 23, 46. Visitation services were later resumed

       but suspended again when Mother came to a supervised visit under the

       influence of alcohol. Id. at 56.


[30]   Further, Mother continued to use drugs throughout the duration of this case.

       Mother had a significant and lengthy history of substance abuse, beginning at

       the age of twelve when she started using cocaine and continuing as she began to

       use heroin at the age of seventeen, which she was using daily by July 2016. Id.

       at 98-100. Mother had a criminal history that included a charge of operating a

       vehicle while intoxicated in June 2016, which was before the CHINS petition

       was filed, convictions for unlawful possession of a narcotic drug and possession

       of a syringe in September 2016, and a conviction for visiting a common

       nuisance in April 2017. Id. at 51-52, 101-02. At the time of the hearing,

       Mother had a pending charge of conversion for which she had been arrested in

       March 2018. Id. at 102. Throughout the proceedings, Mother submitted to

       drug screening, and repeatedly tested positive for different substances, including

       THC, cocaine, methamphetamine, and amphetamines. Tr. Vol. 5 at 57-103,

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 19 of 23
       154-92. Between January 11 and March 22, 2018, Mother failed to submit to

       any drug screens and did not respond when contacted to do so. Tr. Vol. 2 at 50.


[31]   DCS is not required to rule out all possibilities of change; it need only establish

       that there is a reasonable probability the parent’s behavior will not change. In re

       Kay L., 867 N.E.2d at 242. “A pattern of unwillingness to deal with parenting

       problems and to cooperate with those providing social services, in conjunction

       with unchanged conditions, support a finding that there exists no reasonable

       probability that the conditions will change.” Lang v. Starke Cty. Office of Family

       & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Also, as we

       have recognized, “Even assuming that [the parent] will eventually develop into

       a suitable parent, we must ask how much longer [the child] should have to wait

       to enjoy the permanency that is essential to her development and overall well-

       being.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct.

       App. 2006), trans. denied.


[32]   At the time of the termination hearing, DCS had been working with Mother for

       over one and a half years, and Mother had hardly complied with any of the

       services provided by DCS. She had not remedied her substance abuse issues

       and had only minimally participated in other services. Although at the time of

       the termination hearing, Mother was doing well in the residential program at

       the YWCA, she was removed from the stress of everyday life and did not have

       access to any illegal drugs. The evidence showed that Mother had a pattern of

       relapsing after receiving treatment, and it was reasonable for the juvenile court

       to give less weight to her recent four-week period of sobriety. See Bergman v.

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       Knox Cty. OFC, 750 N.E.2d 809, 812 (Ind. Ct. App. 2001) (finding that trial

       court was entitled to give more weight to parent’s historic negative patterns of

       conduct rather than recent changes just prior to the termination hearing). Based

       on the evidence presented, we cannot say that the juvenile court clearly erred in

       concluding that there is a reasonable probability that the conditions that

       resulted in Children’s placement outside the home would not be remedied.3


                                                     Best Interests

[33]   In determining what is in the best interests of the child, a trial court is required

       to look at the totality of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct.

       App. 2010) (citing In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied), trans. dismissed. In doing so, the trial court must subordinate the

       interests of the parents to those of the child involved. Id. Termination of a

       parent-child relationship is proper where the child’s emotional and physical

       development is threatened. Id. (citing In re R.S., 774 N.E.2d 927, 930 (Ind. Ct.

       App. 2002), trans. denied). A parent’s historical inability to provide a suitable,

       stable home environment along with the parent’s current inability to do so

       supports a finding that termination is in the best interest of the child. In re A.P.

       981 N.E.2d 75, 82 (Ind. Ct. App. 2012). Testimony of the service providers, in




       3
         Although Mother does not challenge the juvenile court’s conclusion that there was a reasonable probability
       that the continuation of the parent-child relationship posed a threat to Children’s well-being, we do not have
       to address the issue because Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly
       effectuate the termination of parental rights, the juvenile court need only find that one of the three
       requirements of subsection (b)(2)(B) has been established by clear and convincing evidence. A.D.S. v. Ind.
       Dep’t Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019                 Page 21 of 23
       addition to evidence that the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.

       Ct. App. 2014), trans. denied.


[34]   Mother argues that the evidence presented was not sufficient to prove that

       termination of her parental rights was in the best interests of Children. She

       specifically points to testimony by Johnson, Children’s therapist, who stated

       that she did not have an opinion about whether the continuation of supervised

       visitation would be detrimental to Children. Appellant’s Br. at 21 (citing Tr. Vol.

       2 at 37). Mother also contends that the testimony of the CASA did not support

       that termination was in the best interests of Children because the CASA stated

       that she could not answer whether the continuation of the parent-child

       relationship posed a threat to the well-being of Children. Id. (citing Tr. Vol. 2 at

       93). Mother contends that evidence was presented that she had mostly

       appropriate behavior during visits with Children and that the juvenile court

       chose to ignore the positives in her relationship with Children.


[35]   A juvenile court need not wait until a child is irreversibly harmed such that his

       or her physical, mental, and social development is permanently impaired before

       terminating the parent-child relationship. In re A.K., 924 N.E.2d at 224.

       Additionally, a child’s need for permanency is an important consideration in

       determining the best interests of a child. Id. (citing McBride v. Monroe Cty. Office

       of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)). At the time of

       the termination hearing, Children had been removed from Mother’s care for

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 22 of 23
       over one and a half years, and Mother had failed to make the changes in her life

       necessary to provide Children with a safe and healthy environment. As

       discussed above, DCS presented sufficient evidence that there was a reasonable

       probability that Mother would not remedy the reasons for Children’s removal

       from her care. Additionally, the CASA and FCM both testified that they

       believed termination of Mother’s parental rights would be in Children’s best

       interests. Tr. Vol. 2 at 64, 92-93. Based upon the totality of the evidence, we

       conclude that the evidence supported the juvenile court’s determination that

       termination of Mother’s parental rights was in Children’s best interests.

       Mother’s arguments to the contrary are a request for this court to reweigh the

       evidence, which we cannot do. In re H.L., 915 N.E.2d at 149.


[36]   Based on the record before us, we cannot say that the juvenile court’s

       termination of Mother’s parental rights to Children was clearly erroneous. We,

       therefore, affirm the juvenile court’s judgment.


[37]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1813 | January 29, 2019   Page 23 of 23
