MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                     Jun 21 2019, 7:31 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 APPELLANT                                    ATTORNEYS FOR APPELLEE
Don R. Hostetler                                          Curtis T. Hill, Jr.
Hostetler Law LLC                                         Attorney General of Indiana
Indianapolis, Indiana
                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 21, 2019
of the Parent Child Relationship                          Court of Appeals Case No.
of A.B. (Child) and S.B.                                  19A-JT-58
(Mother);                                                 Appeal from the Marion Superior
S.B. (Mother),                                            Court
                                                          The Honorable Marilyn Moores,
Appellant-Respondent,
                                                          Judge
        v.                                                The Honorable Larry Bradley,
                                                          Magistrate
Indiana Department of Child                               Trial Court Cause No.
Services,                                                 49D09-1806-JT-792
Appellee-Petitioner

and




Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019                           Page 1 of 13
      Child Advocates, Inc.
      Appellee-Guardian Ad Litem




      May, Judge.


[1]   S.B. (“Mother”) appeals the termination of her parental rights to A.B.

      (“Child”). She argues the Department of Child Services (“DCS”) did not

      provide sufficient evidence to support the conclusions that: (1) the conditions

      under which Child was removed from Mother’s care would not be remedied;

      (2) the continuation of the Mother-Child relationship posed a threat to Child’s

      well-being; (3) termination was in Child’s best interests; and (4) there existed a

      satisfactory plan for Child’s placement following termination of Mother’s

      parental rights. We affirm.



                                Facts and Procedural History
[2]   Mother 1 gave birth to Child on August 31, 2016. Mother was seventeen years

      old when Child was born. On September 22, 2016, DCS removed Child from

      Mother’s care based on neglect and Mother’s drug use. DCS filed a petition to

      declare Child a Child in Need of Services (“CHINS”) on October 4, 2016.




      1
          Child’s father executed consent to Child’s adoption and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019                        Page 2 of 13
      Child was placed with his paternal grandmother, where he has remained during

      the proceedings.


[3]   On January 24, 2017, Mother admitted Child was a CHINS. The trial court

      entered its parental participation order the same day and ordered Mother to

      engage in a home-based case management program and follow all

      recommendations; submit to random drug or alcohol screens; 2 participate in

      and complete substance abuse treatment; and participate in and complete

      individual, group, recreational, and family therapies. The court also directed

      Mother to participate in visitation with Child on a consistent basis.


[4]   On June 19, 2018, the trial court changed Child’s permanency plan to adoption

      based on Mother’s lack of participation in services and inconsistent visitation

      with Child. On July 9, 2018, DCS filed a petition to involuntarily terminate

      Mother’s parental rights to Child. On November 26, 2018, the trial court held a

      hearing on the termination petition and Mother did not attend. On December

      11, 2018, the trial court issued an order involuntarily terminating Mother’s

      parental rights to Child.



                                   Discussion and Decision




      2
        The order indicated, regarding drug screens, that “[a]ny request for drug screen that is not completed in a
      timely manner will result in a positive result indication.” (Ex. Vol. I at 74.)

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019                        Page 3 of 13
[5]   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

      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’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).


[6]   “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 trial court must

      subordinate the interests of the parents to those of the children when evaluating

      the circumstances surrounding a termination. In re K.S., 750 N.E.2d at 837.

      The right to raise one’s own children should not be terminated solely because

      there is a better home available for the children, id., but parental rights may be

      terminated when a parent is unable or unwilling to meet parental

      responsibilities. Id. at 836.


[7]   To terminate a parent-child relationship, the State must allege and prove:


              (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-58 | June 21, 2019   Page 4 of 13
                       (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). The State 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. If the court finds the allegations in the petition are true, it must

      terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[8]   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

      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.


[9]   Mother does not challenge the trial court’s findings, and thus we accept them as

      true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019     Page 5 of 13
       does not challenge the findings of the trial court, they must be accepted as

       correct.”). Mother challenges the trial court’s conclusions that the conditions

       under which Child was removed were not likely to be remedied and

       continuation of the parent-child relationship posed a threat to Child’s well-

       being. Mother also argues termination is not in Child’s best interests and no

       satisfactory plan existed for Child after termination.


        Reasonable Probability Conditions Would Not Be Remedied
[10]   The trial court must judge a parent’s fitness to care for her child 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. Child

       was removed from Mother’s care due to neglect and to Mother’s admitted

       substance abuse. Regarding whether there existed a reasonably probability the

       conditions that prompted Child’s removal from Mother’s care would not be

       remedied, the trial court evaluated whether there was a reasonable probability

       that Mother’s neglectfulness and drug use would be remedied, and the court

       found:


               10. [Mother] completed an inpatient drug treatment stay but no
               reports were received from an outpatient treatment referral.
               [Mother] had admitted to continued marijuana and
               methamphetamine use after her inpatient treatment.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019   Page 6 of 13
        11. Although [Mother] was to submit to weekly random drug
        screens, she failed to do so, and last screened in January of 2018.


        12. During much of the CHINS case, [Mother] was living with
        relatives and other people in a chaotic and toxic environment
        inappropriate for children. The family has gone through at least
        two evictions in the past year and have resided in places lacking
        utilities. At times [Mother] has slept in cars.


                                              *****


        15. [Mother] obtained employment a few times during case
        management but none lasting more than two weeks.


        16. [Mother] made no progress in independent skills and
        appropriate housing. She failed to follow up on suggested use of
        food pantries.


        17. After attending a few classes, [Mother] failed to work on
        obtaining a G.E.D.


        18. Case management sessions were to take place once a week.
        [Mother] only went through two or three separate case
        management sessions.


        19. Reanda Jones, the case manager, also supervised parenting
        time between [Mother] and [Child], and tried to implement some
        case management during visits.


        20. Parenting time was very inconsistent. [Mother] could be
        loving at times and inattentive or inappropriate at times.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019   Page 7 of 13
        21. [Child] shared as [sic] close bond with [Mother] during the
        times [Mother] was consistent in exercising parenting time.


        22. [Mother’s] last visit was in May of 2018.


        23. Home based case management closed unsuccessfully in June
        of 2018, without goals being accomplished.


        24. Home based therapy commenced in approximately April of
        2018.


        25. [Mother] presented as impulsive and as having poor decision
        making skills. She continued to choose a nocturnal schedule
        which was detrimental to progressing in services.


                                              *****


        27. [Mother] self-harms, and uses illegal substances as a way to
        self-medicate. She has also sustained injuries from lashing out
        and striking walls or cars.


        28. Therapy was discharged unsuccessfully in June of 2018,
        when [Mother] chose not to continue with the service.


(App. Vol. II at 14-15) (errors in original). Based on those findings, the trial

court concluded:


        There is a reasonable probability that the conditions that resulted
        in [Child’s] removal and continued placement outside the home
        will not be remedied by [Mother,] who has made little to no
        progress toward reunification in the twenty-five months that
        [Child] has been removed from the home, and demonstrates a
        lack of motivation to change and make progress.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019   Page 8 of 13
       (Id. at 15.)


[11]   Mother argues the trial court did not consider Mother’s fitness to care for Child

       as of the date of the termination hearing when determining if the conditions

       under which Child was removed from her care would be remedied. Mother

       chose not to attend the termination hearing and, therefore, was unable to

       provide testimony regarding her recent efforts. If error occurred, it was invited

       by Mother. See Barrix v. Jackson, 973 N.E.2d 22, 27 (Ind. Ct. App. 2012)

       (invited error is not reversible error), trans. denied.


[12]   Moreover, while a trial court must consider a parent’s ability to care for a child

       at the time of the termination hearing, a court may “disregard the efforts . . .

       made only shortly before termination and weigh more heavily [a parent’s]

       history of conduct prior to those efforts.” In re K.T.K., 989 N.E.2d 1225-1234

       (Ind. 2013). Mother has a history of substance abuse and general inability to

       care for Child including unstable housing and employment, inattentiveness at

       visitation, inability to provide basic necessities such as diapers for Child during

       visitation, and non-compliance with services. Mother’s argument is an

       invitation 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 evidence before the

       court supported the court concluding the circumstances would not be




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019   Page 9 of 13
       remedied. 3 See In re K.T.K., 989 N.E.2d at 1234 (mother’s recent sobriety

       outweighed by her history of substance abuse and neglect of her children).


                                                  Best Interests
[13]   In determining what is in Child’s best interests, a 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

       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). The recommendations of a DCS case manager and court-

       appointed advocate to terminate parental rights, in addition to evidence that

       conditions resulting in removal will not be remedied, are sufficient to show by

       clear and convincing evidence that termination is in Child’s best interests. In re

       J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[14]   Regarding Child’s best interests, in addition to those findings quoted supra, the

       trial court found:




       3
         Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need decide only if the
       trial court’s conclusion supports one of these two requirements. See In re L. S., 717 N.E.2d at 209 (because
       statute written in disjunctive, court needs to find only one requirement to terminate parental rights). Because
       the trial court’s findings supported its conclusion that the conditions under which Child was removed from
       Mother’s care would be not be remedied, we need not consider Mother’s argument regarding whether the
       continuation of the Mother-Child relationship poses a risk to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019                      Page 10 of 13
               4. Child was removed from the care of [Mother] [on September
               22, 2016,] and was never placed back in-home.


                                                     *****


               33. [Child] has been placed with his parental grandmother since
               he was five weeks old. [Child] is extremely bonded with his
               caregiver who is meeting all his needs.


               34. [Child’s] placement with his grandmother is preadoptive.


       (App. Vol. II at 14-15.) Based thereon, the trial court concluded “[t]ermination

       of the parent-child relationship is in the best interests of [Child]. Termination

       will allow him to be adopted into a stable and permanent home where his needs

       will be safely met.” (Id. at 16.)


[15]   Mother argues termination is not in Child’s best interests because DCS did not

       present clear and convincing evidence that the conditions under which Child

       was removed from her care would not be remedied and that the continuation of

       the Mother-Child relationship would threaten Child’s well-being. As we have

       held DCS presented sufficient evidence to support the trial court’s conclusion

       under Indiana Code section 31-35-2-4(b)(2)(B), Mother’s argument fails.

       Mother was non-compliant with services, inconsistent with visitation, and

       Child lived outside of her care for the majority of his life. Mother’s argument to

       the contrary is an invitation for us to reweigh the evidence or 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).


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019   Page 11 of 13
       The evidence is sufficient to support the trial court’s determination. See In re

       A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (termination in child’s best

       interests based on totality of the evidence, including parents’ substance abuse

       and non-compliance with ordered services), trans. denied.


                                             Satisfactory Plan
[16]   Pursuant to Indiana Code section 31-35-2-4(b)(2)(D), parental rights cannot be

       terminated unless DCS provides sufficient evidence of a satisfactory plan for the

       care and treatment of the child following termination. We have held “[t]his

       plan need not be detailed, so long as it offers a general sense of the direction in

       which the child will be going after the parent-child relationship is terminated.”

       In re D.D., 804 N.E.2d at 268. Regarding Child’s placement after termination,

       the trial court noted the plan was adoption by paternal grandmother, with

       whom Child had been placed since his removal from Mother’s care. Mother

       argues this was not a satisfactory plan for Child’s care and treatment after

       termination because DCS had not met paternal grandmother’s life partner to

       determine if he was a suitable caregiver.


[17]   During the termination hearing, the family case manager, James Summons,

       admitted he had not observed Child’s interaction with paternal grandmother’s

       life partner, but Summons also testified he did not “have any reason to believe

       [paternal grandmother’s life partner] is an inappropriate caregiver[.]” (Tr. Vol.

       II at 81.) Mother’s counsel did not question whether paternal grandmother’s

       life partner was an appropriate caregiver during the hearing, and on appeal she


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019   Page 12 of 13
       does not suggest he is necessarily inappropriate. Mother’s argument is an

       invitation for us to reweigh 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). Evidence that the plan

       was for Child to be adopted by paternal grandmother was sufficient to support

       the trial court’s conclusion. See In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct.

       App. 2008) (adoption is satisfactory plan for child’s care and treatment after

       termination).



                                                Conclusion
[18]   DCS provided sufficient evidence to support the trial court’s unchallenged

       findings, which supported its conclusions that the circumstances under which

       Child was removed from Mother’s care would not be remedied; termination

       was in Child’s best interests; and there existed a satisfactory plan for Child’s

       care following termination. Accordingly, we affirm.


[19]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-58 | June 21, 2019   Page 13 of 13
