MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                        Mar 20 2020, 10:01 am
court except for the purpose of establishing
                                                                                      CLERK
the defense of res judicata, collateral                                           Indiana Supreme Court
                                                                                     Court of Appeals
estoppel, or the law of the case.                                                      and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                        Curtis T. Hill, Jr.
McCaslin & McCaslin                                      Attorney General
Elkhart, Indiana
                                                         Natalie F. Weiss
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         March 20, 2020
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of L.R. (Minor                              19A-JT-2101
Child)                                                   Appeal from the Elkhart Circuit
                                                         Court
and                                                      The Honorable Michael A.
                                                         Christofeno, Judge
M.C. (Mother) and S.R.
(Father),                                                The Honorable Deborah Domine,
                                                         Magistrate
Appellants-Respondents,                                  Trial Court Cause No.
                                                         20C01-1903-JT-17
        v.

Indiana Department of Child
Services,


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020                 Page 1 of 15
      Appellee-Petitioner




      Crone, Judge.


                                             Case Summary
[1]   M.C. (“Mother”) and S.R. (“Father”) (collectively “Parents”) appeal an order

      terminating their parental relationships with their two-year-old daughter, L.R.

      (“Child”). Finding that they have failed to meet their burden of establishing

      that the trial court clearly erred in ordering termination, we affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the judgment are as follows. Mother and Father

      were in a romantic relationship in 2017, and Mother gave birth to Child on

      December 15, 2017. Father was listed as the father on Child’s birth certificate.

      At birth, Child tested positive for methamphetamine, amphetamine, and

      marijuana. Hospital personnel contacted the Indiana Department of Child

      Services (“DCS”). On December 18, 2017, DCS removed Child from Mother

      and placed her with Father. That same day, DCS filed a petition seeking to

      have Child adjudicated a child in need of services (“CHINS”), citing neglect

      due to Child’s positive tests for illegal substances and Mother’s addiction to

      controlled substances and admission to marijuana use during the last two weeks

      of her pregnancy. Parents admitted to the CHINS allegations, and on January

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020   Page 2 of 15
      4, 2018, Child was adjudicated a CHINS. Mother was ordered to pay child

      support, to complete substance abuse and psychological parenting assessments,

      and to participate in home-based case management, therapy services, and

      supervised visitation. Both Mother and Father were ordered to submit to

      random drug screens. Child’s placement was continued with Father, under

      DCS supervision.


[3]   On February 28, 2018, Father notified DCS that he did not want to be a father

      anymore and asked that Child be removed from his care. He also tested

      positive for methamphetamine, admitted that Child was present in a home

      while methamphetamine was used, and reported that he was no longer taking

      his medication for post-traumatic stress disorder (“PTSD”). On March 1, 2018,

      DCS sought a modification of placement, after which Child was placed with a

      foster family with whom she has resided since. Father was ordered to complete

      a substance abuse assessment and treatment, attend scheduled visitation,

      participate in fatherhood engagement services, and continue random drug

      screens.


[4]   In a May 2018 progress report, DCS noted that Mother had visited Child five

      times but had been noncompliant with service providers. Father also was

      noncompliant and reported that he cared for Child but that Child “is not his.”

      Appellants’ App. Vol. 2 at 130; see also Tr. Vol. 2 at 159 (Father’s admission of




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020   Page 3 of 15
      paternity during factfinding). 1 The trial court conducted several additional

      progress hearings, all with findings indicating that neither parent had visited

      Child or participated in ordered services.


[5]   On March 19, 2019, DCS filed a petition for termination of Parents’ parental

      rights. Father did not appear at the factfinding hearing despite having received

      notice. Mother did not receive notice, and her whereabouts were unknown.

      The factfinding hearing was rescheduled and eventually conducted in August

      2019, with both parents in attendance. DCS Family Case Manager (“FCM”)

      Cindy Silveus and court appointed special advocate (“CASA”) Karen Snyder

      both testified concerning Parents’ noncompliance with services, their lack of

      visitation with Child, and Child’s need for stability and permanency. Both

      recommended termination and adoption. On August 26, 2019, the trial court

      issued an order with findings of fact and conclusions thereon terminating

      Mother’s and Father’s parental relationships with Child. Parents now appeal.

      Additional facts will be provided as necessary.


                                        Discussion and Decision
[6]   Parents challenge the sufficiency of the evidence supporting the trial court’s

      judgment terminating their parental relationships with Child. When reviewing

      a trial court’s findings of fact and conclusions thereon in a case involving the

      termination of parental rights, we first determine whether the evidence supports



      1
        Father’s paternity was established on the basis of the birth certificate. Father did not take a DNA test
      because he had not contested paternity.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020                     Page 4 of 15
      the findings and then whether the findings support the judgment. 2 In re E.M., 4

      N.E.3d 636, 642 (Ind. 2014). We will set aside the trial court’s judgment only if

      it is clearly erroneous. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d

      143, 147 (Ind. 2005). We neither reweigh evidence nor judge witness

      credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the evidence and

      inferences most favorable to the judgment. Id. “[I]t is not enough that the

      evidence might support some other conclusion, but it must positively require

      the conclusion contended for by the appellant before there is a basis for

      reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).

      Where, as here, the appellants do not specifically challenge any of the trial

      court’s findings, they stand as proven, and we simply determine whether the

      unchallenged findings are sufficient to support the judgment. T.B. v. Ind. Dep’t

      of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied; see also

      McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (unchallenged

      findings are accepted as true).


[7]   In Bester, our supreme court stated,


               The Fourteenth Amendment to the United States Constitution
               protects the traditional right of parents to establish a home and
               raise their children. A parent’s interest in the care, custody, and



      2
        Several of the trial court’s findings are mere recitations of testimony by the parties and witnesses. The mere
      recitation of testimony does not amount to a proper finding of fact; rather, the trial court must adopt the
      testimony of the witness. S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1121-22 (Ind. Ct. App. 2013).
      Here, however, the trial court made thoughtful findings that flow from the recited evidence, and because
      these ultimate findings clearly identify the trial court’s reasons for termination, the trial court’s findings as a
      whole are sufficient to support its termination order.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020                        Page 5 of 15
              control of his or her children is perhaps the oldest of the
              fundamental liberty interests. Indeed the parent-child
              relationship is one of the most valued relationships in our culture.
              We recognize of course that parental interests are not absolute
              and must be subordinated to the child’s interests in determining
              the proper disposition of a petition to terminate parental rights.
              Thus, parental rights may be terminated when the parents are
              unable or unwilling to meet their parental responsibilities.


      839 N.E.2d at 147 (citations, quotation marks, and alteration omitted).


[8]   To obtain a termination of a parent-child relationship, DCS is required to

      establish in pertinent part:


              (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.


              ….


              (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.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020   Page 6 of 15
                       (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).


[9]   In recognition of the seriousness with which we address parental termination

      cases, Indiana has adopted a clear and convincing evidence standard. Ind.

      Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367,

      377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need

      not reveal that the continued custody of the parents is wholly inadequate for the

      child’s survival. Rather, it is sufficient to show by clear and convincing

      evidence that the child’s emotional and physical development are threatened by

      the respondent parent’s custody.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.

      2013) (citation omitted). “[I]f the court finds that the allegations in a

      [termination] petition … are true, the court shall terminate the parent-child

      relationship.” Ind. Code § 31-35-2-8(a) (emphasis added).




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020   Page 7 of 15
        Section 1 – Parents have failed to demonstrate that the trial
         court clearly erred in concluding that there is a reasonable
       probability that the conditions that led to Child’s removal will
                               not be remedied.
[10]   Parents assert that the evidence is insufficient to support the trial court’s

       conclusion that a reasonable probability exists that the conditions that led to

       Child’s removal will not be remedied. They do not specifically challenge any of

       the trial court’s findings, so we simply determine whether the unchallenged

       findings are sufficient to support the judgment. T.B., 971 N.E.2d at 110. When

       assessing whether there is a reasonable probability that conditions that led to a

       child’s removal will not be remedied, we must consider not only the initial basis

       for the child’s removal but also the bases for continued placement outside the

       home. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.

       Moreover, “the trial court should judge a parent’s fitness to care for his [or her]

       children at the time of the termination hearing, taking into consideration

       evidence of changed conditions.” In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App.

       2001), trans. denied. “Due to the permanent effect of termination, the trial court

       also must evaluate the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of the child.” Id. In making its case,

       “DCS need not rule out all possibilities of change; rather, [it] need establish

       only that there is a reasonable probability that the parent’s behavior will not

       change.” In re Kay.L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). The court

       may properly consider evidence of a parent’s substance abuse, criminal history,

       lack of employment or adequate housing, history of neglect, and failure to

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020   Page 8 of 15
       provide support. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d

       185, 199 (Ind. Ct. App. 2003).


[11]   Mother’s substance abuse was the principal reason for Child’s initial removal,

       with Child having tested positive for methamphetamine, amphetamine, and

       marijuana at birth. Mother admitted to having used drugs for several years,

       beginning at age fifteen with her use of ADHD medication to treat her attention

       deficit hyperactivity disorder, then advancing to other drugs such as

       methamphetamine. At the time of the factfinding hearing, she had a pending

       criminal cause for marijuana possession and admitted to smoking marijuana

       within the two weeks preceding Child’s birth. Yet, throughout the pendency of

       the CHINS and termination proceedings, she exhibited a pattern of

       noncompliance with completing her court-ordered drug treatment services. She

       twice began residential drug treatment programs but did not complete them.

       The first time, she left the program after just seven days. She began her second

       drug treatment program just thirteen days before the factfinding hearing and

       acknowledged that she was “finally doing this.” Tr. Vol. 2 at 146; see also id. at

       155 (Mother’s admission that she did not participate in any substance abuse

       treatment before June 2019, two months before factfinding). While her recent

       efforts are laudable, the trial court, in its discretion, was free to discount

       evidence concerning her last-minute remedial efforts. See K.T.K., 989 N.E.2d at

       1234 (trial court has discretion to disregard or discount evidence of remedial

       efforts made only shortly before termination hearing). This is particularly

       significant when considered in conjunction with Mother’s lack of compliance


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020   Page 9 of 15
       with other court-ordered services, 3 failure to stay in contact with DCS, and

       failure to participate in her supervised visits with Child for more than a year.

       Tr. Vol. 2 at 153. Mother admitted that she had a pattern of putting her

       boyfriends’ needs first to the detriment of Child’s needs, but she declared at the

       factfinding that “there’s not going to be another boyfriend.” Id. at 133, 152.

       FCM Silveus testified that both Mother and Father had a pattern of expired

       service referrals due to nonparticipation and of refusing to provide addresses,

       which made them very difficult to locate. She said that even when they did

       check in, they never asked about Child. Both Mother and Father were ordered

       to participate in visitation, yet both admitted that they had not seen Child for

       more than a year.


[12]   With respect to Father’s prospects for remedying the conditions that led to

       removal, we find it significant that Child was placed in his care after she was

       removed from Mother and that just two months later, Father specifically

       requested that DCS remove her from his care. He reported to DCS that he was

       “done” and that he “wanted to remove [him]self from being a father.” Tr. Vol.

       2 at 161; see also Appealed Order at 3 (uncontested finding 5(b)(ii)). Father’s

       relinquishment of Child coincided with Mother beginning a romantic

       relationship with another man. Yet, late in the proceedings, when he and

       Mother were on friendlier terms, he wanted to parent Child. The trial court

       articulated Father’s vacillation concerning Child as follows: “It is concerning,


       3
         At the factfinding hearing, Mother testified that she did not know what some of the services were and/or
       thought that some of the services were not ordered for her. Tr. Vol. 2 at 122-23, 142.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020                 Page 10 of 15
       however, that Father wants to be a father when he and Mother get along, and

       wants nothing to do with his daughter when he and Mother are not together.” 4

       Id. at 5 (unchallenged finding 5(b)(xiv)). In other words, Mother and Child

       were a package deal to Father, with his parenting interest being inextricably tied

       to his interest in a close relationship with Mother. With respect to his drug

       issues, Father tested positive for methamphetamine and admitted that Child

       had been present when methamphetamine was being used. He was in and out

       of jail during the pendency of the CHINS and termination proceedings, and at

       the time of the factfinding hearing, he was on probation and was scheduled to

       begin house arrest. He testified that he had been clean for four months, yet he

       did not participate in services aimed at addressing his PTSD, mental health,

       and addiction issues until a week and a half before the factfinding hearing. As

       with Mother’s efforts, the court was free to discount Father’s eleventh-hour

       efforts in favor of his overall pattern of behavior. K.T.K., 989 N.E.2d at 1234.


[13]   In determining that there is a reasonable probability that conditions that led to

       Child’s removal would remain unremedied, the trial court found that

       “throughout most of this case, Parents have been unwilling to cooperate with

       services and unwilling to cooperate with efforts to reunite the family and both

       Parents failed to stay in contact with the DCS or Child.” Appealed Order at 4

       (unchallenged finding 5(b)(viii)). The trial court also articulated that despite

       Parents’ last-minute efforts at drug treatment, “they still had not visited Child


       4
        The findings include the parties’ proper names; we have replaced these references with “Father,”
       “Mother,” and “Child.”

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020                Page 11 of 15
       and still had not completed any of the court-ordered services intended to help

       them parent.” Id. (unchallenged finding 5(b)(xvii)). The court ultimately found

       that


               based on Parents’ conduct, their history of drug use, history of
               failure to establish a relationship with or even visit Child, and
               history of mental illness and limited treatment, the current
               promises are not enough to refute the conclusion supported by
               the evidence that the conditions resulting in removal will not be
               remedied[.]


       Id. at 6 (unchallenged finding 5(b)(xxii)). Based on the foregoing, we conclude

       that neither Mother nor Father has established that this determination is clearly

       erroneous.


        Section 2 – Parents have failed to demonstrate that the trial
       court clearly erred in concluding that termination is in Child’s
                                best interests.
[14]   Parents also assert that the trial court clearly erred in concluding that

       termination of their parent-child relationships is in Child’s best interests. To

       determine what is in the best interests of a child, we must look at the totality of

       the circumstances. In re A.W., 62 N.E.3d 1267, 1275 (Ind. Ct. App. 2016). The

       trial court “need not wait until a child is irreversibly harmed before terminating

       the parent-child relationship.” S.E. v. Ind. Dep’t of Child Servs., 15 N.E.3d 37, 47

       (Ind. Ct. App. 2014), trans. denied. Although not dispositive, permanency and

       stability are key considerations in determining the child’s best interests. In re

       G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “A parent’s historical inability to

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020   Page 12 of 15
       provide a suitable environment along with the parent’s current inability to do

       the same supports a finding that termination of parental rights is in the best

       interests of the children.” In re A.P., 981 N.E.2d 75, 82 (Ind. Ct. App. 2012)

       (quoting Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 373 (Ind.

       Ct. App. 2007), trans. denied). Likewise, “the testimony of service providers

       may support a finding that termination is in the child’s best interests.” In re

       A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010), trans. dismissed.


[15]   Both FCM Silveus and CASA Snyder testified at the factfinding hearing that

       termination and adoption are in Child’s best interests. FCM Silveus testified

       concerning Child’s tender age (not yet two years old) and the fact that Child

       had been not been in the care of either parent since she was two months old.

       She reported that Child is safe and stable in her preadoptive foster placement

       and that her foster family is the only family that she has ever known. She

       likened placement with Parents to placement with strangers and stated her

       belief that such a change would be traumatic. Overall, she stressed the need for

       permanency. Similarly, CASA Snyder emphasized the foundation and bonds

       that have been established between Child and her foster family and determined

       that Child should not be kept on hold while awaiting permanency. The trial

       court agreed with the service providers and ultimately found:


               viii. Here, 20-month-old Child has been out of the care of
               Parents for all but about two months of her life. She has been
               waiting for permanency for more than seventeen months. That is
               “indefinitely” for a child who is less than two years old. It is
               indefinitely for Child.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020   Page 13 of 15
               ix. And while Child has been waiting, Parents have done very
               little to even get to know Child.

               x. For all of the cited reasons termination of parental rights is in
               Child’s best interest.


       Appealed Order at 7-8.


[16]   The totality of the circumstances shows that both Parents have struggled with

       drug addiction. Their tumultuous relationship has gone from romantic to

       estranged to friends, and as the relationship has gone, so has gone Father’s

       stability. Mother appears to have sworn off men in an effort to turn her life

       around, but her lack of stable, independent housing and employment does not

       bode well for her efforts at independence. Moreover, at the time of the

       factfinding hearing, Mother had a pending criminal matter to resolve, and

       Father was on probation and set to begin house arrest. In the meantime, Child

       has been thriving in her placement with her preadoptive foster family and does

       not even know Parents. The service providers have recommended termination

       and adoption, indicating their belief that Child would be traumatized by

       removal from the only family she knows. Perhaps most troubling is Parents’

       pattern of not attempting to visit Child so that she might have gotten to know

       them. Father even went so far as to specifically relinquish Child and report to

       DCS that he would not participate in services (including visitation) because he

       was “done.” Tr. Vol. 2 at 161. Similarly, Mother participated in only a few

       visits early in the CHINS proceedings but did not avail herself of visitation after

       the first couple months despite being ordered to do so. By the time of the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020   Page 14 of 15
       factfinding hearing, neither Mother nor Father had seen Child for over a year or

       even inquired about Child’s welfare when checking in with DCS. In short,

       Parents’ failure to exercise their visitation rights demonstrates a lack of

       commitment to the parent-child relationship and the plan to preserve it. See

       Lang, 861 N.E.2d at 372 (failure to exercise right to visit one’s children

       demonstrates lack of commitment to complete actions necessary to preserve

       parent-child relationship). The totality of the circumstances supports the trial

       court’s conclusion that termination of Parents’ parental rights is in Child’s best

       interests. Thus, Parents have failed to establish clear error in the trial court’s

       decision to terminate their parental relationships with Child. Accordingly, we

       affirm.


[17]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2101 | March 20, 2020   Page 15 of 15
