MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                       Aug 29 2019, 7:17 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Yvonne M. Spillers                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              August 29, 2019
Parent-Child Relationship of                              Court of Appeals Case No.
J.R. (Minor Child) and                                    19A-JT-779
A.P. (Mother),                                            Appeal from the
A.P. (Mother),                                            Wells Circuit Court
                                                          The Honorable
Appellant-Respondent,
                                                          Kenton W. Kiracofe, Judge
        v.                                                Trial Court Cause No.
                                                          90C01-1807-JT-27
Indiana Department of Child
Services,
Appellee-Petitioner



Vaidik, Chief Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019                  Page 1 of 12
                                           Case Summary
[1]   A.P. (“Mother”) appeals the termination of her parental rights to her daughter,

      J.R. (“Child”). We affirm.



                            Facts and Procedural History
[2]   Mother and J.M.R. (“Father”) are the biological parents of Child, born in

      August 2006. Father consented to Child’s adoption and does not participate in

      this appeal; therefore, we limit our narrative to the facts relevant to Mother.

[3]   In June 2016, Mother was living with her boyfriend, B.J., in Madison County

      when they got into a domestic dispute that ended with B.J. pointing a gun at

      her head. Child was in the house at the time. Afterwards, Mother went to

      court to get a protective order against B.J., and the Department of Child

      Services (DCS) got involved due to the domestic-violence issues. Mother and

      DCS agreed to an informal adjustment (IA) to try to resolve the domestic-

      violence issues. However, Mother did not comply with the IA. That is,

      Mother tested positive for marijuana and did not obtain stable housing. In

      October, Mother told DCS that she was going to enlist in the National Guard

      and transfer custody of Child to someone else. Apparently taking Mother at

      her word, DCS closed the IA; however, there is no evidence that Mother ever

      enlisted or transferred custody of Child. After the IA was closed, B.J. moved

      back into the house with Mother and Child.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019   Page 2 of 12
[4]   Less than a year later, in March 2017, DCS received multiple reports of abuse

      or neglect of Child. On March 8, Family Case Manager (FCM) Kristen Beer

      conducted an assessment and discovered that Mother had taken Child to

      maternal grandmother’s (“Grandmother”) house in Wells County, Indiana.

      FCM Beer went to Grandmother’s house and interviewed Child, who said that

      she witnessed domestic violence between Mother and B.J. Child also told

      FCM Beer that Mother told her “they do weed.” Tr. p. 29. At the time of

      Child’s interview, Mother was in Madison County, and FCM Beer spoke to her

      by phone. Mother explained that she “had been planning to come back to

      Wells County that evening when she could get a ride.” Id. After speaking with

      Mother, DCS removed Child from Mother’s care, placed Child with

      Grandmother, and filed a petition alleging that Child was a Child in Need of

      Services (CHINS).1 The trial court determined that Child was a CHINS after

      Mother admitted the allegations in DCS’s petition. Following the hearing, the

      trial court ordered that Mother participate in numerous services, including a

      substance-abuse assessment, a psychological assessment, home-based case

      management, and drug screens. The trial court also ordered Mother to contact

      the FCM every week and notify the FCM of “any changes in address,

      household composition, employment or telephone number within five (5) days

      of said change.” Appellant’s App. Vol. II p. 26. Child remained placed with

      Grandmother. Around that same time, in April 2017, Mother met and married



      1
        DCS also removed Child’s half-sibling, J.H, from Mother’s care. In June 2018, J.H. was placed with his
      father, who has since been granted full physical and legal custody. See No. 48C01-1205-JP-186.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019                 Page 3 of 12
      R.M. Three days after they were married, Mother filed for divorce from R.M.

      because of domestic violence. See Tr. p. 120.


[5]   In May 2017, DCS removed Child from Grandmother’s care because adults

      living in Grandmother’s house tested positive for marijuana. Child was then

      placed in foster care. Meanwhile, Mother began dating R.S. and stopped

      contacting DCS.

[6]   In June, Child was placed in relative placement with paternal aunt (Aunt).

      Child’s therapist, Kristen Keuhl, worked with Child during the transition and

      found that Child was showing signs of significant anxiety—panic attacks, chest

      pains, crying spells, sleep problems—the day before, the day of, or the day after

      visitation with Mother. See id. at 91. Keuhl recommended that Child’s visits

      with Mother be suspended until Child learned how to relax and cope with her

      feelings of anxiety and distress.

[7]   In mid-August 2017, Mother reconnected with DCS and began engaging in

      some services. She completed a substance-abuse assessment, which

      recommended that Mother undergo individual substance-abuse counseling,

      group counseling, and submit to random drug screens. When Mother began

      individual substance-abuse counseling, she agreed to abstain from alcohol,

      among other things. Mother also completed some drug screens but failed to

      complete others, and on August 15 tested positive for marijuana. By

      September, Child had improved her ability to manage her anxiety and began

      having supervised therapeutic visitation with Mother. Around this same time,


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019   Page 4 of 12
      Mother broke up with R.S. “due to his consistent substance use” and because

      she wanted to “do what’s best for [Child].” Tr. p. 64. Two months later,

      however, Mother reunited with R.S., and they married in December 2017.


[8]   For a time, Mother remained somewhat engaged in drug screens and visits with

      Child. Then, in March 2018, she had two positive drug screens; that is, on

      March 1 and 15, she tested positive for alcohol despite having previously agreed

      not to consume alcohol. In mid-March, Mother stopped DCS services

      altogether. First, Mother missed a special full-day visit with Child and some of

      her extended family. Mother did not call to explain her absence and then

      missed her next three visits with Child. Mother also started missing

      appointments at Park Center, where she was completing individual and group

      substance-abuse counseling. From mid-March to August 2018, Mother’s

      whereabouts were unknown, and DCS was unable to locate her. When Mother

      first went missing, Child was “fearful of where Mother was at . . . but then

      became complacent,” telling DCS workers that Mother “has a history and

      routine of leaving and coming back.” Id. at 57. Later, DCS discovered that

      Mother and R.S. had left Indiana and moved to Florida at the end of March.

      In July, DCS filed a petition to terminate Mother’s parental rights to Child.

[9]   On August 3, Mother returned to Indiana to address a bench warrant that was

      issued after she failed to appear for Child’s April 16 permanency hearing. On

      August 19, after Mother was baptized in the Pentecostal Church, she turned

      herself in. Mother was released on her own recognizance, but a condition of

      her release was to contact DCS and speak with the FCM. After reconnecting

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019   Page 5 of 12
       with FCM Lindsey Timmons, Mother began attending home-based case

       management and submitted to drug screens.

[10]   In December, the trial court held a fact-finding hearing on the termination

       petition. FCM Beer testified that when Child was removed from Mother’s care,

       she was concerned that there were several instances where Mother would leave

       Child with Grandmother because the domestic violence with B.J. had been

       “going on for over a year.” Id. at 44. FCM Timmons testified that when she

       took over the CHINS case, Mother was complying with services until July

       2017, when Mother’s phone changed and “her whereabouts were unknown.”

       Id. at 48. FCM Timmons said that Mother reconnected with DCS in late

       August or early September 2017, but then went missing again from March to

       August 2018. See id. FCM Timmons stated that since March 2017, Mother has

       had “nine separate households.” Id. at 49. FCM Timmons said that Mother

       never told her when someone moved in or out of her house and did not tell her

       when she was married or divorced. FCM Timmons stated that Mother’s failure

       to disclose her marital history was a concern for DCS because “it continues to

       show instability.” Id. Aside from FCM Timmons’s concern about Mother’s

       instability, she testified that throughout the CHINS case Mother “has not called

       or not showed-[up] for over a hundred and twenty drug screens.” Id. at 53.

       FCM Timmons also confirmed that Mother’s most recent drug screen was

       positive for methamphetamine and stated that Mother’s husband, R.S., had also

       been ordered to take drug screens and “almost every drug screen – was positive

       for an illegal substance.” Id. at 51. FCM Timmons stated that she believed that


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019   Page 6 of 12
       termination of Mother’s parental rights is in Child’s best interests because Child

       “had to overcome severe anxiety, depression, night tremors . . . and has

       maintained consistent . . . bonds with the family [Child is] with now.” Id. at 60.

       Regarding DCS’s plan for Child, FCM Timmons said the plan is adoption and

       that Aunt is willing to adopt Child.

[11]   Child’s therapist, Kristen Keuhl, testified that when she first started working

       with Child, she was having “panic attacks, crying spells” and at one point had

       to be “taken to the emergency room for chest pains.” Id. at 84. Keuhl believed

       that the instability in Child’s life had been significant and caused Child to have

       difficulties maintaining relationships with caregivers, particularly female

       caregivers. Keuhl said that by the end of her treatment with Child in May

       2018, Child “no longer wanted to be reunified with [Mother].” Id. at 93.

       Child’s Guardian ad Litem (GAL), Beth Webber, testified that Mother had

       “moved around and demonstrated huge instability.” Id. at 97. The GAL stated

       that Mother did not complete services, specifically individual and group

       counseling, and did not obtain stable housing. Ultimately, the GAL said, “I

       whole-heartedly believe that termination of parental rights and subsequent

       adoption is in the best interests of [Child].” Id. at 100. Mother also testified

       that in March 2017, it was her intention to have Child stay with Grandmother

       for a few days so that she could “obtain our property” from the house she

       shared with B.J. Id. at 114. Mother also explained that in March 2018 when

       she went to Florida with R.S., it was for her to “take a breath and make sure




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019   Page 7 of 12
       [she] was okay to make sure [Child] [is] okay.” Id. at 121. In March 2019, the

       trial court issued its order terminating Mother’s parental rights.

[12]   Mother now appeals.



                                  Discussion and Decision
[13]   Mother contends that the evidence is insufficient to support the trial court’s

       order terminating her parental rights to Child. When reviewing the termination

       of parental rights, we do not reweigh the evidence or judge witness credibility.

       In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the

       evidence and reasonable inferences that are most favorable to the judgment of

       the trial court. Id. When a trial court has entered findings of fact and

       conclusions, we will not set aside the trial court’s findings or judgment unless

       clearly erroneous. Id. To determine whether a judgment terminating parental

       rights is clearly erroneous, we review whether the evidence supports the trial

       court’s findings and whether the findings support the judgment. In re V.A., 51

       N.E.3d 1140, 1143 (Ind. 2016).

[14]   A petition to terminate parental rights must allege, 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.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019   Page 8 of 12
                        (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 prove the alleged circumstances by

       clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court

       finds that the allegations in a petition are true, the court shall terminate the

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

[15]   Mother first argues that there is insufficient evidence to support the trial court’s

       conclusion that the conditions resulting in Child’s removal will not be

       remedied. In determining whether the conditions that resulted in a child’s

       removal will not be remedied, the trial court engages in a two-step analysis.

       First, the trial court must ascertain what conditions led to the child’s placement

       and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial

       court determines whether there is a reasonable probability that those conditions

       will not be remedied. Id. “The trial court must consider a parent’s habitual

       pattern of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” Id. The trial court has discretion to weigh a

       parent’s prior history more heavily than efforts made only shortly before
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019   Page 9 of 12
       termination, and the court may find that a parent’s past behavior is the best

       predictor of his future behavior. In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct.

       App. 2016).

[16]   Here, Mother failed to demonstrate that she was any closer to providing Child a

       safe, stable home than she was at the beginning of the CHINS case. The trial

       court’s unchallenged findings on this issue support its conclusion that the

       conditions resulting in Child’s removal will not be remedied. See, e.g., In re

       E.M., 4 N.E.3d 636, 644 (Ind. 2014) (findings regarding father’s non-

       compliance with services support trial court’s conclusion that conditions

       resulting in children’s removal from father’s care would not be remedied). That

       is, the trial court found that Mother had lived in nine different households

       during the CHINS case and did not notify DCS of her household composition,

       marriages, or divorces. See Appellant’s App. Vol. II p. 40 (Findings 18, 20).

       The trial court also found that Mother failed to call in to see if she needed to

       take a drug screen more than 120 times and did not complete substance-abuse

       services.2 See id. at 40-41 (Findings 22, 23). Finally, the trial court found that

       twice during the CHINS case, Mother’s whereabouts were unknown because

       Mother moved without notifying DCS. See id. at 41 (Finding 24). To the

       extent Mother recently began engaging in services after being baptized into the




       2
        In arguing that the conditions resulting in Child’s removal will not be remedied, the State directs us to
       evidence that Mother tested positive for methamphetamine on October 31, 2018. Appellee’s Br. p. 18.
       However, Mother testified that she has never used meth and that the positive test was erroneous, see Tr. p.
       126, and the trial court did not make a finding that Mother used meth.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019                   Page 10 of 12
       Pentecostal Church, we are hopeful that she has begun to turn her life around;

       however, the trial court was well within its discretion to disregard the efforts

       Mother made only shortly before termination and to weigh more heavily her

       history of conduct. See In re K.T.K., 989 N.E.2d at 1234. Accordingly, the trial

       court did not err when it concluded that there is a reasonable probability that

       the conditions resulting in Child’s removal and continued placement outside

       the home will not be remedied.3


[17]   Next, Mother challenges the trial court’s conclusion that termination is in

       Child’s best interests. To determine what is in the child’s best interests, the trial

       court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d 1150,

       1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must

       subordinate the interests of the parents to those of the child. Id. A trial court

       need not wait until a child is irreversibly influenced by a deficient lifestyle such

       that her physical, mental, and social growth is permanently impaired before

       terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290

       (Ind. Ct. App. 2002). When the evidence shows that the emotional and

       physical development of a child in need of services is threatened, termination of

       the parent-child relationship is appropriate. Id.




       3
         Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
       resulted in Child’s removal will not be remedied, we do not address its alternate conclusion that there is a
       reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of
       Child. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B) is
       written in the disjunctive and requires the trial court to find only one of the two requirements of subsection
       (B) has been established by clear and convincing evidence), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019                     Page 11 of 12
[18]   Here, in addition to the domestic-violence and substance-abuse issues that

       necessitated DCS involvement and Mother’s lack of progress since then, both

       FCM Timmons and the GAL testified that terminating Mother’s parental rights

       would serve the best interests of Child. See Tr. pp. 60, 100. Furthermore,

       Child’s therapist testified, and the trial court found, that Child exhibits

       behaviors consistent with having suffered past trauma. That is, Child suffered

       from “panic attacks, crying spells” and at one point had to be “taken to the

       emergency room for chest pains.” Id. at 84. Finally, the trial court concluded

       that “Mother has had nearly twenty-one (21) months to accomplish the steps

       necessary to have [Child] returned to her care,” and “[Child] cannot wait

       indefinitely for [Mother] to work toward preservation and reunification.”

       Appellant’s App. Vol. II p. 43; see In re K.T.K., 989 N.E.2d at 1230 (finding that

       “children have an interest in terminating parental rights that prevent adoption

       and inhibit establishing secure, stable, long-term, continuous relationships”); see

       also In re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct. App. 2004) (children’s needs are

       too substantial to force them to wait while determining if their parents will be

       able to parent them). For all of these reasons, we find that the trial court did

       not err when it determined that termination is in Child’s best interests.

[19]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019   Page 12 of 12
