MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Jun 12 2019, 8:31 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Erin L. Berger                                            Curtis T. Hill, Jr.
Evansville, Indiana                                       Attorney General of Indiana

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         June 12, 2019
Child Relationship of:                                    Court of Appeals Case No.
                                                          18A-JT-2899
J.T. (Minor Child)
                                                          Appeal from the Vanderburgh
      and                                                 Superior Court
A.R. (Mother) & J.T., Sr.                                 The Honorable Brett J. Niemeier,
(Father),                                                 Judge
Appellants-Respondents,                                   The Honorable Renee A.
                                                          Ferguson, Magistrate
        v.                                                Trial Court Cause No.
                                                          82D04-1802-JT-353
Indiana Department of Child
Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019                    Page 1 of 24
      Altice, Judge.


                                                 Case Summary


[1]   A.R. (Mother) and J.T., Sr. (Father) appeal the termination of their parental

      rights to their minor child, J.T., Jr. (Child). Mother and Father (collectively,

      Parents) raise two issues on appeal. Initially, they contend that the factfinding

      hearing was neither commenced nor concluded within the statutorily-mandated

      timeframes set out in Ind. Code § 31-35-2-6. Parents also challenge the

      sufficiency of the evidence supporting the termination order.


[2]   We affirm.


                                         Facts & Procedural History


[3]   Mother and Father have had an on-and-off relationship for many years and are

      the parents of Child, born December 1, 2014. Mother had two other children

      for whom her parental rights have been terminated, one voluntarily in February

      2008 and one involuntarily in December 2010. 1 Both Mother and Father have

      substance abuse issues and criminal histories, including convictions for battery.


[4]   The Indiana Department of Child Services (DCS) removed Child from

      Mother’s care on July 27, 2016, after Child was brought to the local DCS office

      by family friends who had been caring for Child for a few days. Child had two




      1
       Mother was nineteen and twenty-two years of age, respectively, at the time of these previous terminations
      of her parental rights. These children had different fathers, and Father was not one of them.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019                   Page 2 of 24
      bruises on his forehead, an untreated diaper rash, a linear red mark on his lower

      back, and an abrasion on his left thigh. The two adults who brought in Child

      reported that they had witnessed him being struck with a belt and physical

      altercations between Mother and Father. Additionally, a report made earlier

      that month indicated that Child was a victim of neglect due to domestic

      violence between Parents, drug use, and the lack of utilities in the home.


[5]   Mother submitted to a urinalysis and tested positive for THC. Her home had

      no electricity. Mother denied having much recent contact with Father and

      could not provide contact information for him. At the time, Mother was on

      parole for battery, and Father had a warrant out for his arrest. Domestic

      violence runs had been made to Mother’s home as recently as the prior month.


[6]   On July 28, 2016, DCS filed a petition alleging that Child was a child in need of

      services (CHINS). The petition outlined several concerns, including domestic

      violence, lack of electricity in the home, health and safety of Child, and illegal

      drug use by Parents. That same day, Parents appeared at the initial hearing in

      the CHINS matter. Mother stipulated to the allegations set out in the CHINS

      petition, and Child was adjudicated a CHINS. Regarding detention, the court

      ordered Child’s continued placement in foster care.


[7]   At the dispositional hearing on August 16, 2016 and pursuant to the agreed

      parental participation plan, Parents were ordered to, among other things, obtain

      substance abuse evaluations and follow any treatment recommendations, remain

      drug and alcohol free, and participate in parent aide programs, random drug


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 3 of 24
      screens, and supervised or monitored visitation services. Additionally, the court

      ordered Father to establish paternity.                  The court took domestic violence

      counseling under advisement but ordered Parents to refrain from committing any

      acts of domestic violence and to immediately report any such future incidents to

      the DCS family case manager (FCM).


[8]   By the first review hearing in January 2017, Parents had demonstrated a pattern

      of noncompliance with the court’s orders. Specifically, they were not submitting

      to random drug screens or working consistently with the parent aide. Further,

      supervised visitation had been placed on a two-hour call ahead due to the high

      number of missed visits by Mother and, particularly, Father. Mother admitted

      her noncompliance and was found in contempt on January 17, 2017. The court

      sentenced Mother to “90 days in the Vanderburgh County Jail, under

      advisement.” Exhibits Vol. I at 75. Father’s information for contempt was

      continued until paternity was established.


[9]   By the permanency hearing on June 20, 2017, Parents had made some progress

      but were still not in full compliance, as they had many missed drug screens and

      were positive for THC on those screens that they took. Mother obtained an initial

      assessment with Counseling for Change but never returned for recommended

      drug treatment, and she did not fully cooperate with the parent aide. As a result

      of her continued noncompliance, the trial court imposed thirty days of Mother’s

      prior sentence for contempt. Additionally, Father had yet to establish paternity,

      having not shown up at the paternity hearing, and was arrested in early June on



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 4 of 24
       a warrant for a domestic battery charge that involved Mother as the victim. 2 The

       court appointed special advocate (the CASA) recommended domestic violence

       services, but the court indicated that it would address this at the upcoming

       progress hearing. At the progress hearing on July 18, 2017, the court ordered

       domestic violence services for Parents.


[10]   Theodore Parson took over as the family’s FCM in September 2017. FCM

       Parson developed a good rapport with Parents and worked diligently to bring

       them into compliance with services. By December 2017, Parents were regularly

       attending their weekly visits with Child and were taking more initiative with

       regard to other court-ordered services, including working with the parent aide

       regarding housing and completing initial assessments with Counseling for

       Change. Parents and Child appeared very bonded, despite Child’s diagnosis of

       reactive attachment disorder – a diagnosis that the CASA and FCM Parson

       believed should be reevaluated. At the time, Parents were homeless and had been

       unable to demonstrate an ability to refrain from smoking marijuana.


[11]   In her December 2017 report to the court, the CASA addressed ongoing concerns

       regarding domestic violence.                   The CASA noted incidents in October and

       November 2017 that were concerning and opined that domestic violence was still

       a problem in the home. Though ordered by the court in July, Parents had yet to

       participate in domestic violence counseling.




       2
           Father’s paternity was established in August 2017.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 5 of 24
[12]   Due to the age of the CHINS case, on February 22, 2018, DCS filed the instant

       petition to involuntarily terminate the parent-child relationship between Parents

       and Child. Accordingly, in March 2018, the permanency plan in the CHINS

       proceedings was changed to a concurrent plan of reunification and adoption.

       The court in the CHINS proceedings specifically noted on the record at this time

       that Parents had not completed Counseling for Change or domestic violence

       treatment.


[13]   The CASA’s report to the court in the CHINS matter in May 2018 indicated that

       Parents were participating in some of the court-ordered services. They continued

       to attend once weekly visits with Child, which were monitored in their home.

       They completed work with their parent aide, obtaining appropriate housing in

       early 2018 and maintaining stable employment. Parents, however, continued to

       test positive for THC.            After sporadic compliance with treatment through

       Counseling for Change, they were recently compliant with that service. Parents

       had not taken part in any domestic violence classes or counseling. The CASA

       continued to recommend termination of parental rights.


[14]   Meanwhile, in the termination proceedings, the initial hearing was held on

       March 13, 2018. The parties agreed to June 11, 2018 for the factfinding hearing

       (the TPR hearing), which was beyond the ninety-day requirement of I.C. § 31-

       35-2-6(a)(1). At the conclusion of the initial hearing, the CASA noted that

       domestic violence counseling had been ordered and not started.                  Mother’s

       attorney indicated that Parents wanted to complete substance abuse first through

       Counseling for Change and then address domestic violence counseling through

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 6 of 24
       Homebuilders. The court encouraged Parents not to wait on getting some type

       of domestic violence counseling.


[15]   At a pretrial hearing on May 22, 2018, Father requested a continuance of the

       TPR hearing and asked for intensive reunification services to begin in the home.

       DCS objected to a delay of the TPR hearing “based on time lines”, and Father’s

       counsel responded, “We’re happy to waive the 180.” Transcript at 21. Over

       DCS’s objection, the court reset the date for the TPR hearing for August 15, 2018.

       The court ordered services to remain in place, including random drug screens,

       Counseling for Change, and visitation. Once again, the court ordered Parents to

       start domestic violence counseling.                  Finally, the court ordered intensive

       reunification services “[if] it becomes available.” Id. at 25.


[16]   On July 17, 2018, the court held a combined hearing – a pretrial hearing in the

       termination matter and a progress hearing in the CHINS matter.                        DCS

       caseworker Kimberly Nightingale, who had worked on Mother’s previous

       CHINS and termination cases dating back to 2006, presented the court with her

       view of the case. Nightingale observed that Parents continued to use marijuana,

       which she described as one of the major points of noncompliance keeping Child

       out of their home. But Nightingale noted that she usually looks to “other

       indicators” in a TPR situation in addition to positive screens.                 Id. at 29.

       Accordingly, she recommended, on behalf of DCS, “a compromise position.”

       Id. Nightingale explained:


               I want to see a service that the parents are not compliant with
               that has put them in a position of responsibility. Either not
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019    Page 7 of 24
               appearing at appointments or not doing well on visits. We don’t
               have that at this time. They are attending visits. We would like
               to see visitation time increased to three days a week. We’re not
               asking that the child be returned to the home or visitations be in
               the home. But what we think would be appropriate is an
               increase to three days a week with parent/child interactive
               therapy…. I know we’ve got our trial date set…. What we’re
               recommending in terms of services is that right now we
               (indiscernible) basically put some responsibility on them.
               Because without that I don’t think we know what they can or
               cannot do as parents. And they will set themselves up or set us
               for either the best reunification case or the best termination case.
               Because if they can’t make these appointments then it’s on them.


       Id. at 29-30.


[17]   In response, the CASA expressed “major objections to increasing the visitation

       and beginning [interactive] therapy.” Id. at 32. She noted that Child had been

       out of Parents’ home for two years and had been in five different foster homes,

       while Parents had continued to test positive for THC and had not successfully

       completed Counseling for Change. The CASA opined that Child needed

       permanency and that interactive therapy should only be done with his

       permanent placement, which remained up in the air.


[18]   Parents requested that the court “permit them to be able to do the parent

       interactive therapy.” Id. at 32. Mother’s counsel explained to the court:


               I think it’s hard to gauge whether a parent can parent when
               they’re not really allowed to parent that much.… The THC is an
               issue that we obviously have to overcome that. I think our hopes
               that spending more time with the child will be the incentive that
               these parents need to stop doing this. This isn’t a huge drug
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 8 of 24
               addiction. It’s not meth, it’s not cocaine, it’s not some of the
               harder drugs that we see. But it is a street drug and it is illegal.
               So we have discussed that with them. But I think our hope is
               that spending more time with the child will make them
               understand just how important this is and that they will finally do
               what needs to be done so that this child can return to their care.
               We’ve been so close to returning the child to their care.


       Id. at 33. After verifying that Mother had tested positive for THC as recently as

       a week prior to this hearing, the trial court denied Parents’ and DCS’s request

       to increase visits and start interactive therapy. The court affirmed the TPR

       hearing date of August 15, 2018.


[19]   The TPR hearing commenced as scheduled on August 15, 2018, with the

       CASA testifying. The remainder of the hearing was continued to August 27,

       2018, upon Father’s motion. None of the parties objected to the continuance.


[20]   The CASA opined that termination of parental rights was in the best interests of

       Child “[b]ecause we have seen no improvement and the case has been ongoing

       for two solid years now.” Id. at 43. The CASA acknowledged that Parents had

       been regularly visiting Child for nearly a year and that the weekly visits had

       gone well. Parents, however, had been noncompliant with drug screens and/or

       remaining drug free and had not successfully completed Counseling for

       Change. In fact, Father had been arrested and jailed on March 23, 2018 for

       possession of marijuana. Additionally, the CASA noted that Parents had not

       addressed their history of domestic violence despite being court-ordered, in July

       2017, to obtain counseling.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 9 of 24
[21]   Father acknowledged a long history of marijuana use and past and present

       criminal charges/convictions related to marijuana and confirmed that he had

       been jailed more than once because of marijuana. Father stated that he would

       like to stop using marijuana but that he’d “been usin’ it for so long it’s a little

       difficult.” Id. at 82. He attended intensive outpatient treatment (IOP) at

       Counseling for Change but continued to test positive and was discharged,

       having tested positive for THC again on June 26, 2018.


[22]   Similarly, Mother testified that “[f]or the most part” she tested positive for

       marijuana for both DCS and Counseling for Change. Id. at 87. After several

       restarts, Mother had recently completed IOP through Counseling for Change,

       but she did not continue with the aftercare program as directed and tested

       positive for THC in July 2018. Despite their drug use, Mother and Father both

       had stable employment at the local Wendy’s. Mother had worked there for

       over two years and testified that she was about to become a manager.


[23]   FCM Parson testified, based on his experience, that he believed Parents were

       not likely to remedy the reasons that Child had been out of their care for the last

       two years. He explained:


               [Parents] basically got a lot of opportunities and didn’t do
               anything with those opportunities…. When I am [wo]rking
               harder than the parents, and it became evident to me that I’m
               working harder than them and they’re just coasting by, they
               didn’t seem to me that they demonstrated that they knew what
               the big picture was here, which is getting [Child] back. I used the
               analogy as a runner that a marathoner, they need to be able to
               run marathons. And to me their actions have proven to me that

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 10 of 24
               they can’t run marathons. They can only run a short distance.
               Because I’ve coached them and trained them in how to run the
               marathon but they’re not able to do it. It’s either lack of training,
               lack of care, whatever the case may be.


       Id. at 123. Further, FCM Parson opined that termination was in Child’s best

       interests. He explained that Parents failed to show an ability to advocate for

       themselves or for Child, who has special needs with “a lot of issues”, and that

       they did not make getting Child back a priority over other parts of their life,

       including marijuana use. Id. at 121. FCM Parson noted that “their history

       alone is showing a repeated pattern” of failing to “take the ownership” and do

       what is needed to be done “to make sure that this child is not a CHINS.” Id. at

       125. In sum, FCM Parson recommended termination because Child

       “[a]bsolutely” needs permanency now, which Parents were unlikely to be able

       to provide “based on their history, based on the defiance [of court orders], [and]

       based on their lack of advocating for their child.” Id.


[24]   At the TPR hearing, Parents presented evidence in opposition to termination.

       Specifically, they called Kimberly Hale as a witness. Hale had worked with

       them for several months as a parent aide and had handled the visits since July

       2017. Hale testified that Parents and Child had a strong, loving bond and that

       she observed nothing that caused her concern during visits. Parents’ home

       appeared safe and appropriate, with a room for child, and Child was always

       excited to visit them. Additionally, Hale testified that she had successfully

       worked with them regarding housing and obtaining food stamps.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 11 of 24
[25]   Parents also called FCM Parson as a witness. He testified that despite lack of a

       vehicle and use of marijuana, Parents had both maintained employment and

       made every visit with Hale. Their house was also appropriate for placement of

       Child. FCM Parson acknowledged that a month prior to the TPR hearing,

       DCS had sought to increase visits or place Child in the home to start intensive

       reunification services to be able to monitor Parents’ ability to care for Child in

       the home. The CASA was opposed to this request, which was ultimately

       rejected by the court.


[26]   Following the TPR hearing, the court issued its order on November 20, 2018,

       involuntarily terminating the parent-child relationship between Parents and

       Child. The order included extensive findings of fact and conclusions. Parents

       now appeal. Additional information will be provided below as needed.


                                            Discussion & Decision


                                        1. Timeliness of TPR Hearing


[27]   I.C. § 31-35-2-6 sets forth the timeline for conducting factfinding hearings in

       parental rights termination proceedings. The statue provides in relevant part:


               (a) …. Whenever a hearing is requested under this chapter, the
               court shall:


                        (1) commence a hearing on the petition not more than
                        ninety (90) days after a petition is filed under this chapter;
                        and



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 12 of 24
                         (2) complete a hearing on the petition not more than one
                         hundred eighty (180) days after a petition is filed under
                         this chapter.


                (b) If a hearing is not held within the time set forth in subsection
                (a), upon filing a motion with the court by a party, the court shall
                dismiss the petition to terminate the parent-child relationship
                without prejudice.


       As Parents correctly observe, the TPR hearing was neither commenced within

       90 days nor concluded within 180 days as statutorily required. Parents contend

       that the trial court, therefore, was required to dismiss the TPR petition.


[28]   I.C. § 31-35-2-6(b) provides a “specific enforcement mechanism” for

       noncompliance with the timelines set out in subsection (a) of the statute. Matter

       of N.C., 83 N.E.3d 1265, 1268 (Ind. Ct. App. 2017). Specifically, a party may

       file a motion to dismiss in order to obtain dismissal on this ground. Parents did

       not do so below, likely because they were the impetus for delaying the

       proceedings beyond the 180 days. 3


[29]   Recognizing that they did not file a motion for dismissal pursuant to I.C. § 31-

       35-2-6(b), Parents assert that the trial court should have sua sponte dismissed




       3
         Relying on a case in the CHINS context, Parents argue that the statutory deadlines here cannot be extended
       by agreement of the parties. See Matter of T.T., 110 N.E.3d 441, 443 (2018) (“To allow the parties to agree to
       dates beyond the maximum 120-day limit would thwart the legislative purpose of timely rehabilitation and
       reunification of families that are subject to CHINS proceedings.”); but see Matter of N.C., 83 N.E.3d at 1268
       (termination proceeding in which parent “acquiesced to the setting of a fact-finding hearing date outside the
       statutory parameters” and, thus, was found to have “preserved no issue for appellate review regarding the
       application of Indiana Code Section 31-35-2-6”). We need not decide whether to extend the holding in
       Matter of T.T. to the termination context because, unlike that case, Parents never moved for dismissal below.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019                   Page 13 of 24
       the TPR petitions and that its failure to do so constituted fundamental error.

       We cannot agree.


[30]   Fundamental error is a “narrow exception to the waiver doctrine in that an

       ‘error was so egregious and abhorrent to fundamental due process that the trial

       judge should or should not have acted, irrespective of the parties’ failure to

       object or otherwise preserve the error for appeal.’” In re G.P., 4 N.E.3d 1158,

       1167 n.8 (Ind. 2014) (quoting Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012)).

       Further, “the harm or potential for harm therefrom must be substantial and

       appear clearly and prospectively.” In re E.E., 853 N.E.2d 1037, 1043 (Ind. Ct.

       App. 2006), trans. denied.


[31]   Parents do not apply the fundamental error standard on appeal, and they do not

       argue that they were harmed by the fact the TPR hearing concluded five days

       past the statutory deadline. They simply assert that “a hearing [held] outside

       the maximum time frame mandated by the statute thwarts the legislative

       purpose of the time frames.” Appellants’ Brief at 17. Even assuming this is so,

       such does not establish fundamental error.


                                      2. Sufficiency of the Evidence


[32]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628

       (Ind. 2016). Instead, we consider only the evidence and reasonable inferences

       most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. In deference to the trial court’s unique position to assess

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 14 of 24
       the evidence, we will set aside its judgment terminating a parent-child

       relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied. In light of the applicable clear and convincing

       evidence standard, we review to determine whether the evidence clearly and

       convincingly supports the findings and whether the findings clearly and

       convincingly support the judgment. In re R.S., 56 N.E.3d at 628.


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

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

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

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

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

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

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

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

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


[34]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:


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




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 15 of 24
                      (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[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child and that there is a

       satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

       4(b)(2)(C), (D).


[35]   On appeal, Parents assert that DCS failed to present clear and convincing

       evidence that the conditions resulting in Child’s removal would not be

       remedied, that the continuation of the parent-child relationship poses a threat to

       Child’s well-being, and that termination is in the best interests of Child. We

       will address each of these in turn, as needed.


[36]   Parents first contend that DCS failed to present clear and convincing evidence

       that there is a reasonable probability that the conditions resulting in Child’s

       removal or continued placement outside the home will not be remedied. In

       deciding whether a reasonable probability exists that conditions will not be

       remedied, the trial court must judge a parent’s fitness to care for her children at

       the time of the termination hearing, taking into consideration evidence of

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 16 of 24
       changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans.

       denied. The court must also evaluate the parent’s habitual patterns of conduct to

       determine whether there is a substantial probability of future neglect or

       deprivation of the children. Id. The court may consider evidence of the

       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.       The “delicate balance” of weighing a parent’s recent

       improvements against habitual patterns of conduct is entrusted to the trial

       court, “which has discretion to weigh a parent’s prior history more heavily than

       efforts made only shortly before termination.” In re E.M., 4 N.E.3d 636, 643

       (Ind. 2014).


[37]   Parents argue that at the time of the TPR hearing, they had stable, appropriate

       housing, sufficient income to provide for Child, and a strong bond with Child.

       Additionally, they had regularly participated in weekly visits with Child for the

       last year, with recent visits being unsupervised in their home. Parents assert

       that the only evidence of noncompliance was their ongoing “functional” use of

       marijuana. Appellants’ Brief at 22.


[38]   Although Parents had made strides in the months leading up to the TPR

       hearing, neither had successfully completed the IOP aftercare program through

       Counseling for Change and both continued to use marijuana. Parents claim to

       be functional users of the drug, but the evidence reveals that Father has several

       marijuana-related convictions and had been arrested for marijuana possession

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 17 of 24
       just five months before the hearing, with charges still pending. Mother also had

       her probation revoked previously in a battery case based on use of illegal

       substances. Further, regarding noncompliance, Parents never addressed their

       history of domestic violence through court-ordered counseling and rarely

       complied with random drug screens.


[39]   In its extensive findings, the trial court detailed the history of the case, Mother’s

       previous termination cases related to two other children, Parents’ substance

       abuse and criminal histories, and their lack of full compliance with drug

       treatment, drug screens, and domestic violence counseling. With regard to

       Father, the trial court’s order states in part:


               Father states that a child needs parents that are sober, yet father
               has not demonstrated the ability to be a sober caregiver despite
               the services and opportunities that have been provided to him.
               Numerous periods of incarceration, and even the possibility of
               losing rights to his child, were not significant enough to effect a
               change in his behavior. This causes the Court grave concern for
               father’s decision making skills and coping mechanisms as a
               parent.


       Appellants’ Appendix Vol. II at 19. Similarly, the court observed that Mother “did

       not change her pattern of choices and behavior with respect to use of illegal

       substances”, and she chose not to comply with drug screens, even though

       “screens [were] one way she could demonstrate the ability to be responsible….”

       Id. at 20, 21.


[40]   We find the following findings by the trial court particularly relevant here:


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 18 of 24
        12. The Court acknowledges that the parents have attended
        visitation with the child…. However, attending visitation with a
        child is far different than being a child’s parent on a 24 hour per
        day basis. The fact that the parents can attend a visit and exhibit
        no safety issues during that brief time does not negate the long
        pattern of behavior that the parents have displayed in terms of
        decision making. The parents have shown an inability to make
        decisions which are in the best interests of the child, such as the
        choice to continue to use illegal substances, which has
        jeopardized both their freedom and their relationship with the
        child. For this reason the Court does not believe that attendance
        at visits is sufficient to overcome the parents’ other patterns of
        behavior with respect to the child.


        13. Likewise, the Court acknowledges that the parents have
        obtained housing and employment, which are signs of stability.
        However, the Court also does not believe this stability is
        sufficient to overcome the pattern of behavior that the parents
        have displayed. Significantly, the Mother testified that she was
        not drug screening because she “didn’t have time”. Presumably,
        her work was one of the things that did require her attention at
        that time. However, working parents have to be able to balance
        both their employment and the needs of the child. The parents’
        failure to participate in drug screens while also working and
        meeting other obligations gives the Court reason to believe that
        they will have difficulty balancing the needs of the child against
        their own. Furthermore, the Court notes that one of the
        altercations which gave CASA cause for concern also happened
        at the parents’ place of employment.


        14. The child has special needs and has specific mental health
        diagnoses. The parents of this child need to be able to advocate
        for the child and put the child’s needs first. The evidence before
        the Court does not indicate that they have full intent to do so.
        The parents have shown a commitment to some actions that
        benefit them, including obtaining housing and employment.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 19 of 24
        However, their actions that impact the child speak volumes.
        Their history of criminal activity and substance use, defiance of
        court orders, and lack of advocacy for themselves while the child
        is not in there [sic] care leads this Court to believe that they are
        even less likely to be able to meet the child’s needs when he is in
        their care, and things are presumably even more hectic. As of the
        time of trial, the parents do not appear to have provided DCS
        with a plan of care for the child or a plan for schooling were he to
        return to their care.


        15. [FCM Parson] met with the parents on at least 40 occasions
        in an attempt to help the parents achieve reunification …. Mr.
        Parson went so far as to assist the parents with transportation to
        appointments and court himself. Mr. Parson took the time to
        review the original and subsequent dispositional orders with the
        parents…. Mr. Parson advocated with treatment providers to let
        [Mother] back into treatment after they originally were not
        inclined to allow it. Mr. Parson consistently tried to refocus the
        parents on compliance with orders of the court, particularly the
        need to remain clean and sober. Mr. Parson continued to work
        with the parents even after termination of parental rights was
        filed. Although he did so in hopes that the parents could
        demonstrate some period of sobriety, the parents could never
        achieve that. Given the services the parents have been offered
        and the great lengths the family case manager went to to be a
        positive support for the parents, it does not appear that any other
        service could have assisted them with reunification beyond what
        they were provided. If any other services were to have been
        provided, Mr. Parson believed that those would have been
        intensive in-home services which DCS advocated for at one time,
        however, the parents could never refrain from using illegal
        substances in such a way as to make in-home placement and
        services an appropriate option.


        16. DCS became involved with the family in part due to
        substance use issues. The child has remained out of the care of

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 20 of 24
                the parents due to ongoing substance use issues. After nearly two
                years of involvement, the Court still sees evidence of continuing
                use of illegal substances by the parents. Father is currently facing
                charges for possession, and both parents admit to continued use
                of substances despite awareness of the severity of the
                consequences. For this reason, the Court finds that the parents
                are unlikely to remedy the reasons that the child has remained
                out of their care….


       Id. at 21-23.


[41]   Parents challenge only findings number 12 and 13 above, asserting that they are

       speculative because DCS never provided “wraparound services for the family to

       enable [Parents] to show their ability” to appropriately care for Child.

       Appellants’ Brief at 23. We observe that Parents appear to take no responsibility

       for the lack of progress in this case. By the time of the TPR hearing, Child had

       been out of their care for over two years, and they had been visiting him only

       once a week for two hours at a time. Parents waited until termination loomed

       to make any real effort to address their substance abuse. The record establishes

       that intensive reunification services were on hold until Parents completed

       treatment at Counseling for Change and remained drug free so that Child could

       be returned to their home. Parents never accomplished this despite ample

       opportunities, time, and support. 4




       4
         We note, as did the trial court, that “the time for parents to rehabilitate themselves is during the CHINS
       process, prior to the filing of the petition for termination. The termination statutes do not require the court to
       give a parent additional time to meet his or her obligations under the Parent Participation Plan.” Prince v.
       Dep’t of Child Servs., 861 N.E.2d 1223, 1230 (Ind. Ct. App. 2007) (emphasis in original).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019                       Page 21 of 24
[42]   Although we recognize Parents’ efforts regarding housing, employment, and

       visitation, we cannot say that it was clearly erroneous for the trial court to

       conclude that there exists a reasonable probability that the conditions resulting

       in Child’s removal or continued placement outside Parents’ home will not be

       remedied. 5 See A.J. v. Marion Cty. Office of Family & Children, 881 N.E.2d 706,

       715 (Ind. Ct. App. 2008) (affirming termination despite mother’s recent efforts

       in combating her marijuana addiction, because she had thirteen months to

       complete drug treatment and, at the time of the final hearing, “still had to

       complete seven weeks with the IOP aftercare program, as well as complete

       home-based counseling, which could not even begin unless or until Mother

       successfully completed the IOP”), trans. denied.


[43]   While Parents challenge the trial court’s best-interests determination, they do

       not provide a separate analysis beyond asserting that they are “not wholly unfit

       for the very survival of [Child].” Appellants’ Brief at 24. Our Supreme Court

       long ago recognized that this is not the standard for determining the best

       interests of a child. See Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d

       1232, 1234 (Ind. 1992); see also In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009);

       Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005).




       5
         I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore, having upheld the trial court’s conclusion
       under I.C. § 31-35-2-4(b)(2)(B)(i), we need not review the trial court’s determination that continuation of the
       parent-child relationship would pose a threat to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019                      Page 22 of 24
[44]   In making a best-interests determination, the trial court is required to look

       beyond the factors identified by DCS and consider the totality of the evidence.

       In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). 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. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185,

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

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

       child.” In re G.Y., 904 N.E.2d at 1265. “Moreover, we have previously held

       that the recommendations of the case manager and court-appointed advocate to

       terminate parental rights, in addition to evidence that the conditions resulting in

       removal will not be remedied, is sufficient to show by clear and convincing

       evidence that termination is in the child’s best interests.” In re J.S., 906 N.E.2d

       at 236.


[45]   In this case, the CASA and FCM Parson recommended adoption as in the best

       interests of Child. The trial court also provided additional findings to support

       its conclusion that termination of parental rights was in Child’s best interests:


               2. The child has made improvement, and while not in a pre-
               adoptive home, is adoptable.


               3. This child has experienced significant trauma in his life. The
               child at one time was diagnosed with Reactive Attachment
               Disorder, and there are questions as to what the child’s diagnosis
               may be going forward. The child is in need of a caregiver that is
               able to understand his needs and advocate for him. The parents

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 23 of 24
               have not shown that they are able to be that caregiver. It is in the
               best interests of the child that the child be freed for adoption so
               that the process of finding an appropriate long-term caregiver can
               begin.


               4. Due to the behaviors and actions of the parents, DCS has
               never been able to recommend that the child return home. The
               child should not have to wait any longer to determine if the
               parents are going to be able to remedy the reasons that he has not
               been returned home. It is clear that the parents are going to
               continue to engage in toxic behavior and make poor decisions,
               which is not in the best interests of the child.


       Appellants’ Appendix Vol. II at 23-24. The trial court’s best-interest determination

       was supported by the findings and not clearly erroneous.


[46]   We may reverse a termination of parental rights only upon a showing of clear

       error – that is, error which leaves us with a definite and firm conviction that a

       mistake has been made. See A.J., 881 N.E.2d at 716. Based on the record

       before us, we cannot say that the trial court’s termination of Mother’s and

       Father’s parental rights to Child was clearly erroneous.


[47]   Judgment affirmed.


       Kirsch, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2899 | June 12, 2019   Page 24 of 24
