MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                   Dec 03 2019, 8:56 am

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


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Justin R. Wall                                           Curtis T. Hill, Jr.
Wall Legal Services                                      Attorney General of Indiana
Huntington, Indiana
                                                         Natalie F. Weiss
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 3, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of J.E.J.P. (Minor Child) and                            19A-JT-1470
A.W. (Mother) & J.P. (Father);                           Appeal from the Wabash Circuit
A.W. (Mother) & J.P. (Father),                           Court
                                                         The Honorable Robert R.
Appellant-Respondents,
                                                         McCallen, III, Judge
        v.                                               Trial Court Cause No.
                                                         85C01-1811-JT-16
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019                     Page 1 of 14
      May, Judge.

[1]   A.W. (“Mother”) and J.P. (“Father”) (collectively, “Parents”) appeal the

      involuntary termination of their parental rights to J.E.J.P. (“Child”). Parents

      argue the trial court’s findings do not support its conclusions that the conditions

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

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

      well-being, and that termination of Parents’ rights to Child was in Child’s best

      interests. Mother 1 also challenges the trial court’s conclusion that there was a

      satisfactory plan for Child’s care following termination. We affirm.



                              Facts and Procedural History
[2]   Mother and Father are parents of Child, born March 30, 2004. Parents were

      not married, though paternity had been established and custody awarded to

      Mother in a previous legal proceeding. On November 25, 2016, Mother and

      her then-boyfriend, T.W., took Child to the Lighthouse Mission so that Father

      could sell heroin to T.W. T.W. and Father began to argue about the quality of

      the heroin, and T.W. stabbed Father. Child, who was fourteen years old at the

      time, was present during the incident. Father was taken to the hospital, and

      officers arrested Mother and T.W. Child was removed from Mother’s care.




      1
       The trial court’s order found: “[Father] supports the DCS’ current plan for adoption. He fully realizes the
      implications for him.” (App. Vol. II at 49 n.12.) Father does not challenge that finding on appeal and,
      accordingly, does not challenge the court’s conclusion as to the plan for Child’s care being satisfactory.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019                  Page 2 of 14
[3]   On November 29, 2016, the Department of Child Services (“DCS”) filed a

      petition alleging Child 2 was a Child in Need of Services (“CHINS”) based on

      Parents’ drug use and the incident on November 25. On December 30, 2016,

      Mother admitted Child was a CHINS. On January 13, 2017, the trial court

      held a dispositional hearing and entered its dispositional decree as to Mother on

      January 19, 2017. As part of the dispositional decree, Mother was required to

      refrain from drug use and disallow drug use in Child’s presence; participate in a

      mental health assessment, a substance abuse evaluation, and a parenting

      assessment; submit to random and scheduled drug screens; complete an

      assessment for family drug court; participate in counseling services; and attend

      supervised visits with Child.


[4]   On January 24, 2017, Father appeared for a CHINS fact finding hearing and

      admitted Child was a CHINS. Based on Parents’ admissions, the trial court

      adjudicated Child a CHINS. On February 3, 2017, the trial court held a

      dispositional hearing and issued a dispositional decree ordering Father to

      refrain from drug use; participate in a mental health assessment and substance

      abuse evaluation; submit to random and scheduled drug screens; participate in

      counseling services; and attend supervised visits with Child.




      2
        Mother’s other two children, J.D. and T.H., were also subject to CHINS proceedings but are not a part of
      this termination proceeding. During the proceedings herein, J.D. and T.H. were returned to Mother’s care
      but it is unclear under what circumstances they were reunified with Mother.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019                Page 3 of 14
[5]   On March 18, 2017, Mother married T.W., who had stabbed Father in the

      altercation that prompted DCS intervention. On May 19, 2017, the trial court

      held a review hearing. DCS presented evidence Mother completed her mental

      health and substance abuse assessments, but she had not engaged in the services

      recommended by those assessments. Mother had participated in supervised

      visitation with Child, but she had missed several drug screens. At some point

      after the dispositional hearing in February 2017, Father was incarcerated 3 and

      did not participate in services.


[6]   On November 3, 2017, the trial court held a review hearing. Mother was

      engaged in family therapy and supervised visitation with Child. Mother had

      submitted drug screens for a portion of the reporting period, she stopped doing

      so in September and the first half of October 2017, and she reengaged with drug

      screens just prior to the review hearing. Mother attended twelve individual

      therapy sessions but cancelled or failed to attend twenty therapy sessions.


[7]   On April 13, 2018, the trial court held a review hearing. Mother did not attend

      and had stopped participating in services because “she didn’t believe services

      were necessary.” (Tr. Vol. II at 133.) Mother had “gone months” without

      visiting with Child. (Id.) At some point between the review hearing in

      November and the review hearing in April, Father was released from

      incarceration but chose not to engage in services.




      3
          The reason for Father’s incarceration is unclear from the record.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019   Page 4 of 14
[8]    On November 2, 2018, the trial court held a review hearing. In July 2018,

       Mother was arrested for dealing in a narcotic, dealing in a controlled substance,

       and trafficking with an inmate, who was alleged to be T.W. Mother pled guilty

       to dealing in a narcotic and was sentenced to four years of probation. From

       February to October 2018, Mother refused to engage in services, but shortly

       before the November 2 hearing, Mother contacted DCS and expressed an

       interest in reengaging with services. Father was arrested in June 2018, was

       incarcerated, and had not engaged in services.


[9]    On November 8, 2018, DCS filed its petition for involuntary termination of

       parental rights. DCS attempted to engage Mother in services, but she was

       uncooperative. On May 22, 2019, the trial court held a fact-finding hearing on

       DCS’s termination petition. Mother and Father both attended. In response to

       DCS’s repeated concerns regarding Mother’s relationship with T.W., Mother

       testified that she had divorced T.W., but she could not recall the county in

       which her dissolution decree was issued. The trial court ordered Mother to

       submit her dissolution decree within ten days of the termination hearing; she

       did not do so, and the trial court noted its disbelief that such a decree existed.

       On June 6, 2019, the trial court issued its order terminating Parents’ rights to

       Child.



                                  Discussion and Decision
[10]   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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019   Page 5 of 14
       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).


[11]   “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.


[12]   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-1470 | December 3, 2019   Page 6 of 14
                        (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.


[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

       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.


[14]   Parents do 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-1470 | December 3, 2019   Page 7 of 14
       does not challenge the findings of the trial court, they must be accepted as

       correct.”). Parents challenge the trial court’s conclusions that the conditions

       under which Child was removed were not likely to be remedied, that

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

       being, and that termination is in Child’s best interests. Mother alone challenges

       the trial court’s conclusion that a satisfactory plan existed for Child after

       termination.


        Reasonable Probability Conditions Would Not Be Remedied
[15]   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 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 Parents’ care due to their drug use and Child’s exposure to

       criminal activity, including Mother’s then-boyfriend and subsequent husband

       stabbing Father in a failed drug deal.


[16]   Regarding the reasonable probability the conditions under which Child was

       removed from Parents’ care would not be remedied, the trial court found that

       Father was incarcerated for a majority of the proceedings and never engaged in

       services; that Mother engaged in services, but was sporadically compliant; and

       that both parents were still involved in drug use. The trial court found:


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019   Page 8 of 14
       “[Mother] has been dishonest throughout these proceedings. She has no

       credibility and cannot be believed or trusted.” (App. Vol. II at 46.)


[17]   Mother argues she has demonstrated the conditions under which Child was

       removed had been remedied because her two younger children had been

       returned to her care. While the record of the proceedings confirms Mother’s

       two younger children were returned to her care, the record is unclear about the

       circumstances of that reunification. DCS presented evidence that Mother was

       not compliant with services as they were ordered in the CHINS adjudication of

       Child. The trial court found in its order that “[Mother’s] recollection of events

       is not very good, unless they are of benefit to her.” (Id. at 48.) Mother’s

       argument 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 does not reweigh evidence or judge the credibility of witnesses).


[18]   Mother also contends DCS did not provide her adequate services and visitation

       to facilitate reunification with Child. A challenge to the services offered during

       the CHINS proceedings cannot be used to overturn the 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”). Additionally, DCS presented evidence

       it provided Mother with multiple referrals to substance abuse treatment and

       individual therapy, but Mother inconsistently participated. DCS reengaged

       with Mother twice after she stopped participating in services, and DCS offered

       her opportunities to comply with drug screening requirements even after

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019   Page 9 of 14
       Mother moved to another county. The trial court noted in its order that

       Mother’s “expressed desire to re-engage in services was half-hearted.” (App.

       Vol. II at 48.)


[19]   Father argues his incarceration has made it difficult to participate in services

       and, if given a chance, he would be interested in resuming services upon his

       release from incarceration. However, as the trial court noted, Father was

       released from incarceration for a period during the CHINS proceeding and did

       not take affirmative steps to engage in services during that time. Father’s

       argument 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 does not reweigh evidence or judge the credibility of witnesses).


[20]   Despite any progress Mother made in regard to her other children, she has not

       been compliant with services as ordered in the dispositional order regarding

       Child. She is also unable to attack the termination of her parental rights by

       claiming DCS failed to provide her services. Father did not engage in services

       when he was able. Based thereon, the evidence before the court supported the

       court’s unchallenged findings, which support the court’s conclusion the

       circumstances would not be remedied.4 See In re K.T.K., 989 N.E.2d 1225,1234




       4
         Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need decide only if the
       evidence and findings support the trial court’s conclusion as to one of these two requirements. See In re L.S.,
       717 N.E.2d at 209 (because statute written in disjunctive, court needs 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 Parents’ care would be not be remedied, we need not consider Parents’ argument
       regarding whether the continuation of the Parent-Child relationship poses a risk to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019                  Page 10 of 14
       (Ind. 2013) (mother’s recent sobriety outweighed by her history of substance

       abuse and neglect of her children).


                                         Child’s Best Interests
[21]   In determining what is in Child’s best interests, a trial 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).


[22]   Regarding Child’s best interests, the trial court found that while Mother was

       awarded custody of Child as part of a paternity proceeding, she “acknowledged,

       due to her long time use of heroin, that [Child] was essentially in the care and

       custody of his paternal grandparents[.]” (App. Vol. II at 44.) Child was present

       at the altercation between Father and T.W., and it was undisputed that Child

       “was traumatized by the events he witnessed[.]” (Id. at 45.) While Mother

       purported to love Child, the trial court found her “relationship with [T.W.] is

       much more important than her relationship with [Child]” based on the fact that


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019   Page 11 of 14
       she lied about being divorced from T.W., has a child with T.W., and continues

       to have a relationship with T.W. despite the harm Child suffered because of

       T.W.’s stabbing of Father. (Id. at 47.) Finally, the trial court found: “[Child] is

       doing well in his current placement. He is active in sports and making good

       grades. He is adamant that he does not want to return to [Mother].” (Id. at 48.)


[23]   Mother argues that despite her non-compliance with services, she has the

       “means to provide adequate drug-free housing, stability, safety and supervision

       for Child” just as she has done for her two younger children that were placed

       back in her care. (Br. of Appellants at 27.) However, in addition to the trial

       court’s findings regarding Child’s best interests, the family case manager

       testified termination was in Child’s best interests because


               [Child] deserves permanency. He deserves to not be concerned
               about needing leave the home he’s comfortable in. He, um, he
               deserves a home that’s going to be free of drug use, um, where he
               doesn’t have to be concerned about, um, his parents being
               incarcerated, um, and where he’s going to go, um, if that were to
               happen.


       (Tr. Vol. II at 106.) 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 does not reweigh evidence or judge the

       credibility of witnesses). 5 Based on the trial court’s findings regarding Child’s




       5
        Father does not make an argument regarding this element of termination of parental rights, except to say he
       does not think termination of his parental rights is in Child’s best interests.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019               Page 12 of 14
       best interests, the family case manager’s testimony, and our holding supra that

       the trial court’s findings supported its conclusion that there was a reasonable

       possibility the conditions under which Child was removed would not be

       remedied, we conclude the trial court’s findings support its conclusion that

       termination of Parents’ rights was in Child’s best interests. 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
[24]   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. The trial court found

       Child’s relative placement sought to adopt him upon the termination of Parents’

       rights. Mother6 argues that “maintaining the status quo, i.e. Child remaining in

       relative placement care while Mother or Father implements services is a very

       satisfactory plan for the care and treatment of Child.” (Br. of Appellants at 28.)

       In light of the fact that this family has been involved with DCS for over two

       years with very little progress toward reunification, we cannot agree. See In re




       6
        The trial court found Father consented to Child’s adoption by relative placement. Father does not
       challenge that finding.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019              Page 13 of 14
       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
[25]   The trial court’s findings support its conclusions that the conditions under

       which Child was removed from Parents’ care would not be remedied, that

       termination of parental rights was in Child’s best interests, and that there was a

       satisfactory plan for Child’s care following termination of Parents’ rights.

       Accordingly, we affirm the involuntary termination of Parents’ rights to Child.


[26]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1470 | December 3, 2019   Page 14 of 14
