                                                                                 FILED
                                                                            Mar 13 2017, 10:13 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT,                                    ATTORNEYS FOR APPELLEE
FATHER                                                     Curtis T. Hill, Jr.
Kimberly A. Jackson                                        Attorney General of Indiana
Indianapolis, Indiana
                                                           Robert J. Henke
ATTORNEY FOR APPELLANT, MOTHER                             David E. Corey
Cara Schaefer Wieneke                                      Deputy Attorneys General
Special Asst. to the State Public Defender                 Indianapolis, Indiana
Wieneke Law Office, LLC
Brooklyn, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           March 13, 2017
of the Parent-Child Relationship                           Court of Appeals Case No.
of G.M. (Child) and M.M.                                   35A02-1609-JT-2096
(Mother) & K.C. (Father);                                  Appeal from the Huntington
                                                           Circuit Court
M.M. (Mother), and                                         The Honorable Thomas Hakes,
K.C. (Father),                                             Judge
Appellants-Respondents,                                    Juvenile Court Cause No.
                                                           35C01-1603-JT-13
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017                      Page 1 of 20
      May, Judge.


[1]   M.M. (“Mother”) and K.C. (“Father”) (collectively, “Parents”) appeal the

      involuntary termination of their parental rights to G.M. (“Child”). Mother

      challenges a number of the juvenile court’s findings and argues the Department

      of Child Services (“DCS”) did not present sufficient evidence the conditions

      under which Child was removed would not be remedied and termination was in

      the best interests of Child. Father makes similar arguments, but we find

      dispositive his argument the juvenile court could not terminate his rights when

      it had never issued a dispositional decree as to Father. We affirm in part,

      reverse in part, and remand.



                                Facts and Procedural History
[2]   Child was born to Mother on December 10, 2014. Child was born with a heart

      condition requiring specialized care. On December 12, 2014, DCS removed

      Child under the juvenile court’s emergency order because Mother admitted

      using unprescribed painkillers and heroin during pregnancy. Father 1 refused a

      drug screen and reported to DCS he was unable to care for Child because “he is

      on probation for rape and is not permitted to be around children unsupervised.”

      (DCS Ex. 3.) On December 16, 2014, DCS filed a petition alleging Child was a




      1
          Father’s paternity was established on January 20, 2015.


      Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 2 of 20
      Child in Need of Services (CHINS) based on Mother’s drug use, Child’s drug

      withdrawal at birth, and Father’s inability to care for Child.


[3]   Father was incarcerated all but a three-month period during these proceedings.

      He was arrested shortly after Child’s birth for an alleged probation violation

      based on his testing positive for morphine and Percocet. In March 2015, the

      State filed another petition to revoke his probation, alleging Father tested

      positive for morphine. Father’s probation was revoked in May 2015, and he

      was ordered to serve the remainder of his suspended sentence for rape and

      burglary.


[4]   The juvenile court held an initial hearing on the CHINS petition on August 4,

      2015, and Father admitted Child was a CHINS. After Father’s admission, the

      juvenile court held a fact finding hearing as to the allegations involving Mother

      and ultimately adjudicated Child a CHINS. The juvenile court held a

      disposition hearing on September 4, 2015, and ordered:

              2. Mother shall participate in a substance abuse evaluation, as
              well as ongoing substance abuse treatment.


              3. Mother shall attend visitation with the child as long as she
              maintains clean drug screens.


              4. Mother shall submit to random drug screens.


              5. Mother shall participate in home based services.




      Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 3 of 20
              6. Mother and [sic] shall comply with all recommendations of
              DCS as outlined in paragraph IV of DCS’ Predispositional
              Report filed September 1, 2015.


              7. Father may participate in services as he is able while
              incarcerated. Father’s dispositional hearing will not occur until
              his release from incarceration.


      (DCS Ex. 11.)


[5]   Mother did not participate in services or visit with Child consistently. She

      tested positive for illegal substances four times during the pendency of these

      proceedings. She did not attend Child’s medical appointments, despite being

      advised of when they were. Mother was incarcerated at the time of the final

      termination hearing. Father participated in some parenting-related services

      while incarcerated.


[6]   On December 17, 2015, the juvenile court, on DCS request, changed Child’s

      permanency plan from reunification to adoption based on Mother’s

      noncompliance with services and positive drug screens. On March 7, 2016,

      DCS filed a petition to terminate Parents’ rights to Child. On July 14, 2016, the

      juvenile court held a hearing on the matter and entered an order terminating

      Parents’ rights to Child on August 12, 2016.




                                  Discussion and Decision

      Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 4 of 20
[7]   We review termination of parental rights with great deference. In re K.S., 750

      N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

      the credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

      2004), trans. denied. Instead, we consider only the evidence and reasonable

      inferences most favorable to the judgment. Id. In deference to the juvenile

      court’s unique position to assess the evidence, we will set aside a 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, cert. denied 534 U.S.

      1161 (2002).


[8]   “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. A juvenile court

      must subordinate the interests of the parents to those of the child, however,

      when evaluating the circumstances surrounding a termination. In re K.S., 750

      N.E.2d at 837. The right to raise one’s own child should not be terminated

      solely because there is a better home available for the child, id., but parental

      rights may be terminated when a parent is unable or unwilling to meet his or

      her parental responsibilities. Id. at 836.


[9]   To terminate a parent-child relationship in Indiana, DCS must allege and

      prove:


               (A)     that one (1) of the following is true:
                       (i)    The child has been removed from the parent for at
                              least six (6) months under a dispositional decree.

      Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017    Page 5 of 20
                 (ii)   A court has entered a finding under IC 31-34-21-5.6
                        that reasonable efforts for family preservation or
                        reunification are not required, including a
                        description of the court’s finding, the date of the
                        finding, and the manner in which the finding was
                        made.
                 (iii) The child has been removed from the parent and
                        has been under the supervision of a county office of
                        family and children or probation department for at
                        least fifteen (15) months of the most recent twenty-
                        two (22) months, beginning with the date the child
                        is removed from the home as a result of the child
                        being alleged to be a child in need of services or a
                        delinquent child;
        (B)      that one (1) of the following is true:
                 (i)    There is a reasonable probability that the conditions
                        that resulted in the child’s removal or the reasons
                        for 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.


Ind. Code § 31-35-2-4(b)(2). DCS must provide clear and convincing proof of

these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied.

“[I]f the State fails to prove any one of these statutory elements, then it is not

entitled to a judgment terminating parental rights.” Id. at 1261. Because

parents have a constitutionally protected right to establish a home and raise

their children, the State “must strictly comply with the statute terminating

parental rights.” Platz v. Elkhart Cnty. Dep’t of Public Welfare, 631 N.E.2d 16, 18

(Ind. Ct. App. 1994).
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 6 of 20
                                             I. Father’s Argument

[10]   In its September 4, 2015, Dispositional Decree, the juvenile court ordered

       Mother to complete certain services, and stated regarding Father: “Father may

       participate in services as he is able while incarcerated. Father’s dispositional

       hearing will not occur until his release from incarceration.” (DCS Ex. 11.) As

       part of its order on December 3, 2015, approving the change in Child’s

       permanency plan from reunification to adoption, the juvenile court noted,

       “Father is incarcerated and is not under disposition.” (DCS Ex. 12.) Based

       thereon, Father argues DCS has not proven Child had been removed from his

       care under a dispositional decree for at least six months as required by Indiana

       Code Section 31-35-2-4(b)(2)(A)(i).


[11]   As an initial matter, we note waiver of this issue would normally apply, as

       generally a party is not permitted to raise an issue for the first time on appeal.

       See Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000) (“A party may not raise an

       issue for the first time in a motion to correct error or on appeal.”), reh’g denied.

       However, we have held, concerning the requirement a child be removed under

       a dispositional decree for at least six months before a court can terminate a

       parent’s rights, the “constitutionally protected right of parents to establish a

       home and raise their children mandates that the failure of a juvenile court to

       require compliance with any condition precedent to the termination of this right

       constitutes fundamental error which this court must address sua sponte.” Parent-

       Child Relationship of L.B. and S.B. v. Morgan Cty. Dept. of Public Welfare, 616

       N.E.2d 406, 407 (Ind. Ct. App. 1993), trans. denied.

       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 7 of 20
[12]   The juvenile court stated in its December 3, 2015, order, “Father is incarcerated

       and is not under disposition.” (DCS Ex. 12.) “An involuntary termination

       petition must allege, and the State must prove by clear and convincing

       evidence, that the child was removed from the parents for at least six months

       under a dispositional decree at the time the involuntary termination petition

       was filed.” In re D.D., 962 N.E.2d at 74. As stated in the court’s order, Father

       was not “under disposition” on December 3, 2015, and thus when DCS filed

       the petition to terminate his parental rights three months later in March 2016,

       Child had not been removed as to Father for at least six months.2 The juvenile

       court erred when it terminated Father’s parental rights to Child, and we must

       reverse the judgment as to Father.


                                             II. Mother’s Arguments 3

[13]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of



       2
         This issue is dispositive as to Father because DCS was required to prove Child had been removed from his
       care for at least six months or Child had been removed from his care for fifteen of the last twenty-two months
       as required by Indiana Code Section 31-35-2-4(b)(2)(A)(iii), and the juvenile court concluded DCS did both.
       However, in its brief, DCS conceded it did not meet the fifteen month criteria, as it filed its petition to
       terminate Parents’ rights when Child had been removed for one year, two months, and twenty-four days. As
       the statute is written in the disjunctive, DCS is required to prove only one of the three parts of Indiana Code
       Section 31-35-2-4(b)(2)(A). See In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (Indiana Code Section 31-35-
       2-4(b)(2)(A) written in the disjunctive and thus DCS need only prove one of the enumerated elements
       therein), trans. denied.


       3
         In its brief, DCS noted the juvenile court signed the dispositional order in this case on September 4, 2015,
       but the order was not entered in the Chronological Case Summary until October 7, 2015. DCS argued,
       “[u]sing the date the court signed the order, DCS met the ‘6 months under a dispositional [order]’
       requirement. However, using the date the order was entered into the CCS, i.e., Oct. 7, 2015, this is only
       about five months before DCS filed its termination [petition] on March 7, 2016.” (Br. of Appellee at 8, n.5)

       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017                          Page 8 of 20
       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

       evidence supports the findings and whether the findings support the judgment.

       Id. “Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the juvenile court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208. Mother challenges

       nine of the juvenile court’s findings, arguing the findings are not supported by

       the evidence.




       A. Findings Regarding Visitation and Services


[14]   Mother challenges two of the juvenile court’s findings regarding visitation with

       Child and Mother’s participation in services:

                13. After removal of the child on or about December 12, 2014,
                the child was never returned to parents’ care and custody as a
                result of Mother’s absence from the child’s life and services, non-
                compliance with services, Mother’s positive drug screens,



       It is well-established the State’s noncompliance with the six-month statutory requirement as set forth in
       Indiana Code Section 31-35-2-4(b)(2)(A)(i) is fatal to an involuntary termination of parental rights. See, e.g.,
       In re D.D., 962 N.E.2d 70, 76 (Ind. Ct. App. 2011) (termination of mother’s parental rights reversed because
       DCS filed petition to termination mother’s rights less than six months after juvenile court entered its
       dispositional decree). Here, the CCS of Child’s CHINS case indicates on October 7, 2015, “COURT
       ENTERS DISPOSITIONAL ORDER (Hearing held September 4, 2015) (RJO). COPY OF ORDER TO DCS,
       ATTORNEY JUSTIN WALL & ATTORNEY CASEY MORGAN.” (DCS Ex. 2) (emphasis in original).
       The entry indicated “Order Signed: 09/04/2015[.]” (Id.) An entry from September 4, 2015, states,
       “Disposition hearing held. Court approves DCS recommendations and enters Order on same.” (Id.) (emphasis in
       original). The order was signed on September 4, 2015. Based thereon, we conclude DCS met the six-month
       statutory requirement set forth in Indiana Code Section 31-35-2-4(b)(2)(A)(i) because the time frame between
       September 4, 2015, and March 7, 2016, is at least six months.

       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017                           Page 9 of 20
               Mother’s failure to visit the child through a majority of the child’s
               life, [and] Mother’s current incarceration[.]


                                                      *****


               34. Prior to Mother’s recent incarceration, she did not engage in
               her court-ordered services regularly.


       (Mother’s App. at 98, 100.)


[15]   Mother argues, regarding the juvenile court’s findings 13 and 34, that she

       regularly visited with Child until Father was incarcerated in March 2015,

       because without him she did not have transportation to the visitations. The

       evidence indicates she visited with Child for eight one-hour sessions from

       January 2015 until March 2015. She cancelled seven visitations, and fifteen

       visitations were cancelled “due to [Child’s] condition or medical

       appointments.” (Id. at 101.) Mother claims DCS did not attempt to find a new

       service provider for visitation until August 2015 and Mother was never

       approved to begin supervised visits after taking the required intake assessment.

       DCS Services Manager Daniel Borne testified Mother was not allowed

       supervised visitation with Child after her intake assessment because “she

       needed to complete the drug screen to be able to start the visits and have regular

       interaction with [the Family Case Manager].” (Tr. at 94.) Mother’s final visit

       with Child was in October 2015 when she “visited, uh, late one, uh, evening,

       and she spent approximately an hour with [Child]” while Child was in the

       hospital for heart surgery. (Id. at 132.)


       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 10 of 20
[16]   Regarding services, Mother “does not dispute that she did not complete all the

       required services under the dispositional order.” (Br. of Mother at 15.)

       However, she complains she “was given only a few short months to comply

       with services” and her long work hours and lack of transportation “made

       complying with services more difficult than usual.” (Id.) Borne testified he

       received referrals for services including “psychological tests, uh, substance

       abuse treatment, substance abuse evaluation, and uh, drug screens” for Mother

       on February 21, 2015. (Tr. at 87.) Borne testified he “got another referral for

       home base[d] family center case work” in August 2015. (Id. at 88.) Borne

       stated Mother completed her initial intake clinical interview on August 20,

       2015, but never completed an initial substance abuse assessment and did not

       meet with a substance abuse counselor. This evidence is sufficient to support

       the juvenile court’s relevant findings.


[17]   Mother’s arguments are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

       (appellate court cannot reweigh evidence or judge the credibility of witnesses).

       Further, her contentions involve the adequacy of services provided as part of

       her CHINS case, which is unavailable for our review during an appeal

       following termination of parental rights. See In re H.L., 915 N.E.2d 145, 148 n.3

       (Ind. Ct. App. 2009) (“failure to provide services does not serve as a basis on

       which to directly attack a termination order as contrary to law”).


       B. Findings Regarding Mother’s Drug Screens



       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 11 of 20
[18]   Mother takes issue with two of the juvenile court’s findings regarding her

       positive drug screens. The juvenile court found:

               36. After March 2015, Mother’s only drug screen was
               administered in December 2015 by DCS.


                                                      *****


               52. Before Mother stopped reporting for drug screens, Mother
               tested positive for drugs on the following dates:


                        a. December 11, 2014: positive for oxycodone without a
                        prescription[;]


                        b. February 16, 2015: positive [for] methadone without a
                        prescription;


                        c. February 26, 2015: positive for opiates (hydrocodone)
                        without a prescription[.]


       (Mother’s App. at 100-01.) Mother also claims the part of Finding 13

       indicating she had “positive drug screens,” (id. at 98), is incorrect because she

       had only one positive drug screen from the time she was ordered to complete

       services in September 2015 until the termination petition was filed in March

       2016.


[19]   Mother argues the juvenile court should not have considered her three other

       positive drug screens because they were prior to the CHINS adjudication. She

       also argues, regarding the first positive drug screen for oxycodone without a


       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 12 of 20
       prescription, which was taken at the hospital following Child’s birth, “[i]t seems

       probable that Mother was given an epidural during labor and a pain reliever

       after delivery in the hospital, which would have shown up on the drug screen.”

       (Br. of Mother at 15-16.) However, Mother did not present any evidence to

       support that speculation. Moreover, in its order following the initial hearing on

       DCS’s petition to declare Child a CHINS on December 16, 2014, the court

       stated, “Court Orders Mother to have no drugs in her system when visiting the

       child. Court advises mother of contempt and that she can be held in contempt

       and incarcerated if she disregards the Order of the Court to have no drugs in her

       system while she is visiting child.” (DCS Ex. 6.) Thus, Mother knew she was

       not to take drugs prior to the dispositional order stating she should not do so.


[20]   The record contains evidence that supports the findings; DCS presented

       multiple exhibits containing the results of Mother’s drug screens and Borne

       testified DCS referred Mother for a “substance abuse evaluation, and uh, drug

       screens” on February 21, 2015. (Tr. at 87.) Her arguments are invitations for

       us to reweigh the evidence and judge the credibility of witnesses, which we

       cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh

       evidence or judge the credibility of witnesses).


       C. Finding Regarding Mother’s Behavior during Visitation


[21]   The juvenile court found regarding Mother’s interaction with Child during

       supervised visitation: “During visits, service provider Ira Bencun observed

       Mother would hold the child but would not initiate conversation to learn more


       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 13 of 20
       about the child’s condition and required care.” (Mother’s App. at 101.)

       Mother argues this finding is “basically correct, [but] it does not reflect the

       entirety of the evidence presented on the issue.” (Br. of Mother at 17.) Mother

       directs us to Bencun’s testimony Child “would be asleep most of the visit just

       because of his age” and Mother “was appropriate in holding him and handling

       him in that one hour that she would [inaudible] him each visit.” (Tr. at 105.)

       Bencun also testified that while Mother did not initiate conversations regarding

       Child’s condition and required care, she received that information from Child’s

       foster mother.


[22]   Bencun’s testimony supports the juvenile court’s findings. Mother’s arguments

       are invitations for us to reweigh the evidence and judge the credibility of

       witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate

       court cannot reweigh evidence or judge the credibility of witnesses).


       D. Findings Regarding Mother’s Interaction with the GAL


[23]   Regarding Mother’s interaction with the GAL, the juvenile court found:

               107. The GAL testified that she was never able to meet either
               the parents in person prior to July 14, 2015 [sic] at the trial on
               DCS [sic] petition to involuntarily terminate parental rights.


                                                      *****


               113. The GAL testified that Mother has always had other
               priorities, such as her job, that, while important, seemed to take
               priority over her own child.


       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017    Page 14 of 20
       (Mother’s App. at 105.) Mother’s argument regarding this issue is a litany of

       excuses regarding why she was unable to meet with the GAL such as “Mother

       was unable to respond to GAL’s letter . . . because she had no funds for

       envelopes and postage” and had the GAL “met Mother in person . . . she

       would have learned that Mother’s place of employment was short-staffed at the

       time; that Mother was required to work extra hours to keep her job; and that

       her employer has now hired additional staff, which will allow Mother to work

       fewer hours each week.” (Br. of Mother at 18.) Her excuses are invitations for

       us to reweigh the evidence and judge the credibility of witnesses, which we

       cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh

       evidence or judge the credibility of witnesses). The record contains evidence

       that supports the findings.


       E. Finding Regarding Child’s Relationship with Foster Parents


[24]   The juvenile court found, “[Child] has progressed well in his foster family, and

       he views his foster parents as his true parents.” (Mother’s App. at 106.)

       Mother contends she does not dispute that the foster family has cared for Child

       while the CHINS and termination cases proceeded, but “the juvenile court’s

       finding that [Child], a non-speaking toddler, views his foster parents as his ‘true

       parents’ is speculation at best and certainly not supported by the evidence.”

       (Br. of Mother at 19.) We agree the juvenile court’s determination Child feels

       foster parents are his “true parents” is unsupported by the evidence, as such a

       sentiment is hardly capable of determination under these facts. However, as the

       juvenile court made appropriate findings regarding Mother’s drug use, lack of

       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 15 of 20
       frequency in visitation with Child, and noncompliance with services, the

       finding by itself does not warrant reversal. See Roser v. Silvers, 698 N.E.2d 860,

       863 (Ind. Ct. App. 1998) (“Where juvenile court findings on one legal theory

       are adequate, findings on another legal theory amount to mere surplusage and

       cannot constitute the basis for reversal even if erroneous.”).


       F. Reasonable Probability Conditions Resulting in Child’s Removal Would

       Not Be Remedied


[25]   The juvenile court must judge a parent’s fitness to care for her children at the

       time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.

       2010). 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. Lang v.

       Starke Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.


[26]   In terminating Mother’s parental rights, the juvenile court concluded there was

       a reasonable probability the conditions that resulted in Child’s removal from

       Mother’s care would not be remedied. Mother argues this conclusion is not

       supported by the findings because she had steady employment, reliable

       transportation, and a place for her and Child to live. She also reported at the

       termination hearing she was aware of Child’s special needs and felt her training

       as a certified nursing assistant would help her learn the specific requirements of

       his medical care quickly. She also testified she would be released from

       incarceration in November 2016. She argues she no longer has a problem with


       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 16 of 20
       drugs and at the termination hearing stated she “was more than willing to

       complete any services requested and believed that due to a change in her work

       schedule and the fact that she had obtained reliable transportation, she would

       have the ability to meet with service providers and complete those services.”

       (Br. of Mother at 20-1.)


[27]   The evidence suggests otherwise. Mother did not complete services, and the

       time for completion of those services had long passed. As noted in our

       discussion of Mother’s challenged findings, she did not complete services

       offered by DCS, even after ordered by the court to do so; she did not regularly

       visit with Child and did not seek to understand his condition and how to treat

       it; and she had multiple positive drug screens, the last of which resulted in her

       arrest and subsequent incarceration for violation of probation. Mother’s

       arguments are requests for us to reweigh the evidence and judge the credibility

       of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate

       court cannot reweigh evidence or judge the credibility of witnesses). The

       juvenile court did not err when it concluded there was no reasonable probability

       Mother would remedy the conditions that led to Child’s removal from her care.


       G. Best Interests of the Child


[28]   In determining what is in the child’s best interests, the juvenile court is required

       to look beyond the factors identified by DCS and consider the totality of the

       evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.

       A parent’s historical inability to provide a suitable environment along with the


       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 17 of 20
       parent’s current inability to do so supports finding termination of parental rights

       is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990 (Ind. Ct.

       App. 2002).


[29]   Mother argues she was not given ample time to complete services to assist her

       in reunification with Child and thus termination is not in the best interests of

       Child. However, the adequacy of the services provided to her as part of Child’s

       CHINS case is unavailable for our review during an appeal following

       termination of parental rights. See In re H.L., 915 N.E.2d at 148 n.3 (“failure to

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

       termination order as contrary to law”).


[30]   Further, DCS presented sufficient evidence termination was in Child’s best

       interests. Family Case Manager John Lane testified termination was in Child’s

       best interests because


               [Child is] established in a home in which he’s in and has been
               provided, umm, appropriate care during that time, in fact all of
               his life since being discharged from the hospital, and he has no
               bond with his parents and they’ve not provided, uh, any care for
               him even or bonded with him at this point.


       (Tr. at 140.) Additionally, Kathryn Garrett, Child’s Guardian ad Litem

       testified termination was in Child’s best interests because:

               Uh, well, with regard to mother, umm, it seemed to me that
               significant, uh, strides had not been made, uh, to repair the
               conditions that initiated the removal particularly with regard to
               her participation [in] service[s] or addressing her substance abuse

       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 18 of 20
               issues. Uh, and, also her non-attendance, I guess, at medical
               appointments that she was able to go to, umm, the drug
               screening and also any supervised visitation. Umm, it was my
               understanding that there was [sic] several months that she was
               not incarcerated that she did not participate. . . . Umm, and I
               don’t believe either parent has, I guess, learned about the medical
               condition or what would involve going forward if the child were
               to be reunited with them.


       (Id. at 160.) The juvenile court did not err when it concluded termination was

       in Child’s best interests and terminated Mother’s parental rights because there

       existed sufficient evidence to support that conclusion. We accordingly affirm

       the termination of Mother’s parental rights.



                                                Conclusion
[31]   The juvenile court erred when it terminated Father’s parental rights to Child

       because Child had not been removed from Father under a dispositional decree

       for at least six months as required by Indiana Code Section 31-35-2-

       4(b)(2)(A)(i). However, DCS presented sufficient evidence to support the

       juvenile court’s findings regarding Mother, including the juvenile court’s

       conclusions the circumstances under which Child was removed would not be

       remedied and termination was in Child’s best interests. Therefore, we reverse

       the termination of Father’s parental rights to Child, affirm the termination of

       Mother’s parental rights to Child, and remand to the juvenile court for

       proceedings consistent with this opinion.


[32]   Affirmed in part, reversed in part, and remanded.

       Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017   Page 19 of 20
Najam, J., and Bailey, J., concur.




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