MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Sep 17 2019, 8:58 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                           Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          September 17, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of K.M. (Minor Child);                                    19A-JT-651
C.T. (Mother),                                            Appeal from the Miami Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Daniel C. Banina,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               52D02-1808-JT-7
Services,
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019               Page 1 of 23
                                             Statement of the Case
[1]   C.T. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor child, K.M. (“Child”). 1 Mother raises two issues for our review,

      which we restate as follows:


                 1.       Whether the trial court violated her due process rights
                          when it suspended her visitation with Child during the
                          CHINS proceedings.

                 2.       Whether the State presented sufficient evidence to support
                          the termination of her parental rights.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Mother gave birth to Child on October 17, 2014. On March 30, 2017, the

      Indiana Department of Child Services (“DCS”) received a report that Child’s

      scalp was missing a two-inch by two-inch section of hair. In response, DCS

      Family Case Manager (“FCM”) Nicole Krohn visited Mother and asked

      Mother about Child. Mother was “unable to give an explanation for the child’s

      injury[.]” Ex. Vol. III at 16. The next day, FCM Krohn showed pictures of

      Child’s wound to a doctor at Riley Children’s Hospital. The doctor informed

      FCM Krohn that Child’s injury was “inflicted” and that it would have been

      “very painful.” Id. Thereafter, on April 28, DCS filed a petition alleging that



      1
          Child’s father does not participate in this appeal.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 2 of 23
      Child was a Child in Need of Services (“CHINS”). DCS did not remove Child

      at that time.


[4]   On May 4, there was “an incident” at Mother’s home. Id. at 47. A man with a

      knife “got very upset,” and someone called 9-1-1. Id. Officers responded to the

      call and went to Mother’s house. Officers then transported the man to a

      counseling center for a 72-hour mental health hold. The next day, the trial

      court held an initial hearing on the CHINS petition. Due to the incident at

      Mother’s house the previous day, the court ordered Mother to notify DCS

      “immediately of any change in the household composition, including providing

      the identity of any individual sleeping over in the home[.]” Id. at 45.


[5]   One week later, on May 12, FCM Krohn went to Mother’s home to conduct an

      announced visit. When she arrived, FCM Krohn discovered that an

      unidentified male had spent the night at Mother’s home with Mother and

      Child. When FCM Krohn asked Mother about the man, Mother could not

      provide FCM Krohn with the man’s first or last name but could only provide a

      nickname. DCS removed Child from Mother’s home at that time. The court

      ratified DCS’s removal of Child from Mother’s home and granted Mother

      visitation with Child. The man was later identified as a convicted child

      molester.


[6]   On June 28, following a hearing, the trial court adjudicated Child to be a

      CHINS. Specifically, the court found that Child was a CHINS because

      Mother: was unable to provide an explanation for Child’s head wound, was on


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 3 of 23
      probation following a conviction for possession of a controlled substance, had a

      pending probation violation, and had a new criminal charge for battery. That

      same day, the trial court entered its dispositional decree and ordered Mother to

      participate in services, including home-based case management, supervised

      visitation, a mental health assessment, a parenting assessment, and to follow all

      recommendations of the service providers.


[7]   Between the date of the court’s dispositional order and the end of November,

      Mother “partially complied” with services. Id. at 59. Mother completed her

      clinical intake and parenting assessments, but she did not enroll in the services

      recommended by the providers. However, at the end of November, Mother

      “went downhill . . . in her use of drugs[.]” Tr. Vol. II at 46. On November 30,

      the State charged Mother with several drug related crimes, and Mother pleaded

      guilty to one count of dealing in methamphetamine, as a Level 5 felony, and

      one count of possession of a syringe, as a Level 6 felony. As a result, Mother

      was incarcerated from December 2 through December 15. Shortly thereafter,

      Mother was again arrested, and, on January 15, 2018, the State charged Mother

      with one count of possession of a controlled substance, as a Class A

      misdemeanor. Mother pleaded guilty to that charge.


[8]   Mother’s arrests became a “hindrance” to her ability to participate in services.

      Id. at 35. On February 14, the trial court entered an order in which it changed

      the permanency plan from reunification to termination of parental rights.

      Specifically, the court found that Mother had not complied with services and

      that she had been arrested on two new drug charges. That same day, the court

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 4 of 23
       ordered Mother to submit to random drug screens due to “concerns about

       [Mother’s] substance abuse” and “her arrests for substance related crimes.” Id.


[9]    Mother was “noncompliant” with services following that date. Ex. Vol. III at

       65. In March, Mother missed four out of four possible visits with Child.

       Further, Mother tested positive for illegal substances at the only random drug

       test she took. Accordingly, on March 14, the trial court modified its

       dispositional order. The court ordered Mother’s visitation to be suspended until

       she was “100% compliant with all services for three weeks[.]” Id. Thereafter,

       on May 7, the State revoked Mother’s bond in a prior case and arrested her.

       Prior to that arrest, Mother was “not in compliance with any service.” Id. at

       67. Mother was released from incarceration on June 12. The next day, the trial

       court held a permanency hearing. Following that hearing, Mother tested

       positive for methamphetamine metabolites. Mother was again arrested on June

       18 and charged with one count of unlawful possession of a syringe, as a Level 6

       felony, to which Mother pleaded guilty. And, on July 1, Mother was charged

       with one count of unlawful possession of a syringe in a separate cause.


[10]   On August 21, DCS filed a petition to terminate Mother’s parental rights over

       Child. Mother was released from jail on October 16 and, as a condition of her

       probation in two prior cases, entered a rehabilitation center on October 19.

       However, Mother used methamphetamine “right before” she entered the

       program. Tr. Vol. II at 111. Less than one month later, on November 13,

       Mother left the program without having completed “even the most minimum of

       the programming[.]” Id. at 90. Mother knew that leaving “would be a

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 5 of 23
       violation of [her] probation” and that DCS had filed a petition to terminate her

       parental rights. Id. at 122. After Mother left the program, she missed two drug

       screens. As a result of Mother’s failure to complete the program, the State filed

       two petitions to revoke her probation.


[11]   The court held a fact-finding hearing on the petition to terminate Mother’s

       parental rights on December 4. Thereafter, on February 19, 2019, the court

       entered the following findings of fact and conclusions of law:


               There is a reasonable probability that the conditions that resulted
               in the [C]hild’s removal or the reasons for the placement outside
               of the parent’s home will not be remedied in that:


                                                       ***


               3. On April 28, 2017, the Verified Petition Alleging [Child] a
               Child in Need of Services was filed as an In-Home CHINS due
               to the [C]hild having a two inch by two inch section of hair
               missing from the top of her head; Dr. Stalker confirmed the
               injury was inflicted and Mother could not explain how the [C]ild
               received the injury while in her care.


               4. A condition of the [C]hild remaining in home with Mother
               was that she would, “notify the DCS immediately of any change
               in the household composition, including providing the identify of
               any individuals sleeping over in the home, and inform the DCS
               of the identify of any individuals providing care for or
               ‘babysitting’ the child,” as ordered by the Court at the Initial
               Hearing on May 5, 2017.


               5. On May 12, 2017, the [C]hild was removed from the [M]other
               and placed in foster care after FCM [Miranda] Sipe and FCM

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 6 of 23
        Krohn conducted an announced home visit at [Mother’s]
        residence and an unidentified male, later identified as a convicted
        child molester who is on the sex offender registry, was asleep on
        the couch.


        6. The [C]hild was adjudicated a Child in need of service[s] on
        June 28, 2017.


        7. The CHINS court entered a Dispositional Decree on June 28,
        2017, ordering [Mother] to participate in services which would
        enhance [her] abilities to fulfill [her] parental obligations.


        8. [Mother] was ordered to actively and consistently participate
        in the following services:


                 a. Home Based Services


                         i. While Mother had a brief period of compliance
                         between detention and approximately November
                         2017, all referrals were closed due to noncompliance
                         without meeting an[y] service goals.


                 b. Supervised visitation


                         i. From the time of detention to approximately
                         November 2017, Mother was adequately consistent
                         with visitation; though she cancelled some visits,
                         her referral was able to remain open.


                         ii. Mother’s attendance with visits became sporadic
                         at best through November 2017 and after. In early
                         March 2018, Mother failed to attend four of four
                         possible visits and they were Ordered suspended


Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 7 of 23
                         until she was 100% compliant with other services.
                         Mother has not had any visits since that time.


                 c. Mental Health Intake


                         i. Mother did not follow through in completing the
                         appointments for her intake to receive mental health
                         services.


                 d. Parenting assessment


                         i. Mother completed the parenting assessment early
                         in the case; she was recommended to participate in
                         individual therapy, a psychological evaluation to
                         confirm [a] suspected mental health diagnosis, a
                         psychiatric evaluation for medication management,
                         and home based case management. Mother did not
                         enroll, schedule, or participate in any of the
                         recommended services, beyond the homebased case
                         management she was already receiving.


                 e. Random Drug Screens


                         i. Following arrests for drug related charges,
                         Mother was Ordered to participate in the random
                         drug screen calendar on February 14, 2018. Mother
                         never participated [by] consistently calling in and
                         screening when requested; she continued to test
                         positive for methamphetamine metabolites when
                         screened and had additional drug related arrests.


                         ii. Mother was released from the Howard County
                         Jail June 12, 2018; she attended a hearing in the
                         underlying CHINS cause on June 13, 2018, and was

Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 8 of 23
                         given a drug screen after which [she tested] positive
                         for methamphetamine metabolites.


                                            ***


        10. At the time of the Fact Finding Hearing in the CHINS,
        Mother was on probation in cause 52D02-1604-CM-119 (pled
        guilty to Possession of a Controlled Substance), and had a
        pending probation violation, as well as new criminal charges for
        battery under cause 52D02-1706-CM-178.


        11. Mother was arrested on new cause 52D02-1807-F6-166 for
        Illegal Possession of a Syringe, a Level 6 felony, which was
        pending at the time of the Fact-Finding Hearing on 12/4/2018.
        (This Court takes judicial notice of the fact that Mother
        subsequently pleaded guilty to this charge on February 14,
        2019[,] before the same Judge in the same Court.)


        12. Mother was charged in cause 34D01-1806-F6-553 and
        plead[ed] guilty to Illegal Possession of a Syringe; there is a
        pending petition to revoke probation and warrant for her arrest
        due to her leaving her Court Ordered substance abuse
        rehabilitation probation without completing the program.


        13. Mother was charged in cause 52D02-1801-CM-16 and
        plead[ed] guilty to Possession of a Controlled Substance.


        14. Mother was charged in cause 34D01-1712-F4-1375 and
        plead[ed] guilty to Dealing Methamphetamine and Illegal
        Possession of a Syringe; there is a pending petition to revoke
        probation and warrant for her arrest to her leaving her Court
        Ordered substance abuse rehabilitation program without
        completing the program.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 9 of 23
                                                ***


        There is a reasonable probability that continuation of the parent-
        child relationship poses a threat to the well-being of the [C]hild in
        that:


                                                ***


        3. Mother has never taken responsibility for the injury that led to
        the filing of the underlying CHINS cause; even today she gives
        no explanation for her child’s injury.


        4. Mother has refused to engage in offered services to address
        her own mental health diagnoses and improve her ability to
        parent.


        5. Not only has Mother not taken advantage of services offered
        to remedy the concerns that led to the child’s removal, Mother’s
        circumstances have grossly deteriorated with her
        methamphetamine use and repeated arrests for drug related
        charges.


        6. Additionally, Mother has demonstrated no desire to change
        her behavior; she tested positive for methamphetamine the day
        after being released from incarceration, when she was in Court
        for a hearing in her daughter’s CHINS cause, knowing the
        Department had filed a petition for the termination of her
        parent[-]child relationship.


        7. By her own testimony here today, Mother admits she left her
        substance abuse rehabilitation program without completing it,
        knowing this termination of parental rights case was pending,
        and that leaving would violate the terms of her probation, which


Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 10 of 23
               could lead to her suspended sentence in the Department of
               Correction being reinstated.


               8. Mother also was reluctant to agree that she would participate
               in the substance abuse rehabilitation if she was given further
               opportunity, if that was the only way her child could be returned
               to her care.


                                                       ***


               Termination is in the [C]hild’s best interests in that:


               1. [Child] is entitled to permanency and her needs are
               paramount . . . .


               The Department of Child Services has a satisfactory plan for the
               care and treatment of the [C]hild, which is: adoption.


       Appellant’s App. Vol. II at 21-25. In light of its findings and conclusions, the

       court terminated Mother’s parental rights over Child. This appeal ensued.


                                      Discussion and Decision
                                              Standard of Review

[12]   Mother appeals the trial court’s termination of her parental rights over Child.

       We begin our review of this appeal by acknowledging that “[t]he traditional

       right of parents to establish a home and raise their children is protected by the

       Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

       Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

       denied. However, a trial court must subordinate the interests of the parents to

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 11 of 23
       those of the child when evaluating the circumstances surrounding a

       termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

       832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

       proper where a child’s emotional and physical development is threatened. Id.

       Although the right to raise one’s own child should not be terminated solely

       because there is a better home available for the child, parental rights may be

       terminated when a parent is unable or unwilling to meet his or her parental

       responsibilities. Id. at 836.


[13]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to 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.

                        (ii) There is a reasonable probability that the
                        continuation of the parent-child relationship poses a
                        threat to the well-being of the child.

                                                       ***

               (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.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 12 of 23
       Ind. Code § 31-35-2-4(b)(2) (2018). DCS’s “burden of proof in termination of

       parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

       Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

       I.C. § 31-37-14-2).


[14]   When reviewing a termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

       Fam. & Child. (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 that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

       court’s unique position to assess the evidence, we will set aside the court’s

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied.


[15]   Here, in terminating Mother’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).

       First, we determine whether the evidence supports the findings and, second, we

       determine 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 trial court’s decision, we must affirm.

       In re L.S., 717 N.E.2d at 208.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 13 of 23
                                           Issue One: Due Process

[16]   Mother first contends that the trial court violated her due process rights when it

       terminated her parental rights. “When a State seeks to terminate the parent-

       child relationship, it must do so in a manner that meets the requirements of the

       due process clause. Although due process has never been precisely defined, the

       phrase embodies a requirement of fundamental fairness.” Tavorn v. Marion Cty.

       Off. of Fam. and Child. (In re J.T.), 740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000)

       (quotation marks and citations omitted), abrogated on other grounds by Baker v.

       Marion Cty. Off. of Fam. and Child., 810 N.E.2d 1035 (Ind. 2004). In addition,

       because of the interlocking CHINS and termination of parental rights statutes,

       “‘procedural irregularities in a CHINS proceeding may be of such import that

       they deprive a parent of procedural due process with respect to the termination

       of his or her parental rights.” Phelps v. Porter Cty. Off. of Fam. and Child. (In re

       A.P.), 734 N.E.2d 1107, 1112-13 (Ind. Ct. App. 2000).


[17]   In In re A.P., this Court considered “a record replete with procedural

       irregularities throughout the CHINS and termination proceedings that [were]

       plain, numerous, and substantial.” Id. at 1118. Specifically, this Court

       analyzed seven errors, which included the following: (1) the Porter County

       Office of Family and Children failed to provide the parents with copies of some,

       if not all, of the child’s case plans; (2) the termination petition did not include

       any of the statutorily required allegations; (3) the original CHINS petition was

       unsigned and unverified; (4) the trial court never held a permanency hearing;

       (5) none of the court orders, including the CHINS dispositional order,

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 14 of 23
       contained written findings or conclusions; (6) the trial court entered a no-

       contact order against the father without following the statutory prerequisites;

       and (7) the father was deprived of his right to be present at hearings on at least

       two occasions. Id. at 1117. This court held that, taken together, those errors

       amounted to a violation of the parents’ due process rights such that the Court

       was “compelled” to reverse the court’s termination order. Id. at 1118.


[18]   Here, Mother contends that she was denied her procedural due process rights

       with respect to the termination of her parental rights because of a procedural

       irregularity in the CHINS proceedings. Specifically, Mother asserts:


               Here[,] the procedural irregularity is the cessation of Mother’s
               supervised visitation with her daughter long before the close of
               the CHINS proceedings. The juvenile court may have had
               benevolent motivations when ordering Mother’s visitation
               stopped until Mother complied 100% for three consecutive weeks
               with DCS services. But the reality is, when Mother’s largest
               hurdle with compliance is substance abuse, and the DCS has not
               referred Mother for substance abuse treatment, making visitation
               contingent upon consecutive clean drug tests likely exacerbates
               the problem that needs to be addressed.


               For [a] drug addict, hopelessness and emotional turmoil will lead
               to caving to their addiction. This reality should be acceptable
               without citation. And, denying a parent access to their child for
               weeks at a time will cause hopelessness and emotional turmoil.
               Therefore, it’s possible, indeed likely, that the court order
               terminating Mother[’s] visitation with her child until she was
               100% compliant contributed to her substance abuse and related
               legal problems, which in turn made it more difficult for her to
               comply with the disposition order.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 15 of 23
       Appellant’s Br. at 19-20. In essence, Mother contends that the court’s order

       suspending her visitation contributed to her noncompliance such that

       termination of her parental rights amounted to a violation of her due process

       rights.


[19]   We first note that Mother failed to raise this issue to the trial court during the

       termination hearing. It is well settled that a parent can waive a due process

       claim in a CHINS or termination proceeding by raising that claim for the first

       time on appeal. See McBride v. Monroe Cty. Off. of Fam. and Child., 798 N.E.2d

       185, 194-95 (Ind. Ct. App. 2003). Because Mother did not raise this issue to the

       trial court, the issue is waived.


[20]   Waiver notwithstanding, Mother’s claim must fail. Mother contends that the

       trial court’s order suspending her visitation with Child was a “procedural

       irregularity” because DCS had not provided her with substance abuse treatment

       and because the order caused her to use drugs. But Mother’s argument is not a

       procedural attack. Indeed, DCS provided Mother with mental health services,

       which would have likely helped her address her drug addiction, but Mother did

       not follow through with the recommended services. There was nothing about

       the CHINS order suspending visitation that amounted to a violation of due

       process. Rather, the trial court gave Mother notice of the order; gave her an

       opportunity to respond to it; and outlined exactly what Mother needed to

       accomplish to resume visitation. Instead, Mother continued to use drugs and

       not comply with services. Mother has not demonstrated that there was any

       procedural irregularity in the CHINS proceedings, much less a procedural

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 16 of 23
       irregularity that amounted to a violation of her due process rights during the

       termination proceedings. 2


                                   Issue Two: Sufficiency of the Evidence

[21]   Mother next contends that the trial court erred when it concluded that: the

       conditions that resulted in Child’s removal will not be remedied; the

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

       being; and termination is in Child’s best interest. However, as Indiana Code

       Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not address

       Mother’s contention that the continuation of the parent-child relationship poses

       a threat to Child’s well-being.


                      Reasons for Child’s Placement Outside of Mother’s Home

[22]   Mother asserts that the trial court erred when it concluded that the reasons for

       Child’s placement outside of Mother’s home were unlikely to be remedied.

       Specifically, Mother contends that the conditions that resulted in Child’s

       removal included “Mother allowing a man to sleep at her home on one

       occasion, without incident, shortly after a CHINS proceeding had been initiated

       due to an unexplained injury to [Child] from someone apparently pulling the




       2
         To the extent Mother argues that her due process rights were violated when DCS failed to refer Mother to
       substance abuse treatment, the “failure to provide services does not serve as a basis on which to directly
       attack a termination order as contrary to law.” A.Z. v. Ind. Dep’t of Child Servs. (In re H.L.), 915 N.E.2d 145,
       148 n.3 (Ind. Ct. App. 2009).



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019                  Page 17 of 23
       child’s hair out,” but that there was “no evidence that either of these issues

       would persist[.]” Appellant’s Br. at 13.


[23]   Mother’s argument on this issue misses the mark. This Court has clarified that,

       given the wording of the statute, it is not just the basis for the initial removal of

       the child that may be considered for purposes of determining whether a parent’s

       rights should be terminated, but also any basis resulting in the continued

       placement outside of a parent’s home. Inkenhaus v. Vanderburgh Cty. Off. of Fam.

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

       Here, in addition to considering the reasons for Child’s initial removal from

       Mother’s home, the court also properly considered the conditions that resulted

       in the continued placement of Child outside of Mother’s home, which included

       Mother’s failure to comply with services, her drug use, and her repeated arrests

       for drug-related crimes.


[24]   And the evidence supports the trial court’s findings and conclusions on this

       issue. To determine whether there is a reasonable probability that the reasons

       for Child’s continued placement outside of Mother’s home will not be

       remedied, the trial court should judge Mother’s fitness to care for Child at the

       time of the termination hearing, taking into consideration evidence of changed

       conditions. See E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643

       (Ind. 2014). However, the court must also “evaluate the parent’s habitual

       patterns of conduct to determine the probability of future neglect or deprivation

       of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind.

       Ct. App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 18 of 23
       have properly considered evidence of a parent’s prior criminal history, drug and

       alcohol abuse, history of neglect, failure to provide support, and lack of

       adequate housing and employment. Id. Moreover, DCS is not required to rule

       out all possibilities of change; rather, it need establish only that there is a

       reasonable probability the parent’s behavior will not change. Id.


[25]   The trial court found, and the evidence supports, that Child was removed from

       Mother’s care on May 12, 2017, after Mother had violated a court order and

       allowed an unidentified male, who Mother later learned had been convicted of

       two counts of child molestation, to stay at Mother’s house while Child was

       present. The court then ordered Mother to participate in services. Mother

       partially complied with services until the end of November. But Mother “went

       downhill” in December because of her drug use. Tr. Vol. II at 46. Mother’s

       drug use resulted in repeated arrests and periods of incarceration. Following

       one arrest in June 2018, Mother used methamphetamine the day after she was

       released from jail, which resulted in Mother being under the influence at a

       CHINS hearing. Mother was incarcerated again only a few days later. And on

       October 16, two months after DCS had filed its petition to terminate Mother’s

       parental rights, Mother was released from incarceration and again used

       methamphetamine. Indeed, Mother used methamphetamine right before she

       entered a rehabilitation program that was a condition of her probation. Then,

       in mid-November, less than one month before the fact-finding hearing on the

       petition to terminate her parental rights, Mother left the rehabilitation program

       without having completed it, even though she knew it was a violation of her


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 19 of 23
       probation in two cases. And after she left the rehabilitation program, Mother

       missed two drug tests.


[26]   Still, Mother contends that her drug use and related legal problems cannot

       support the trial court’s judgment on this issue “because those did not arise

       until” after DCS had removed Child. Appellant’s Br. at 13. But, as discussed

       above, the trial court can properly consider the circumstances that led to Child’s

       continued placement outside of Mother’s home in addition to the reasons for

       Child’s initial removal. See In re A.I., 825 N.E.2d at 806.


[27]   Mother’s arguments on appeal seek to have this court disregard the evidence

       most favorable to the trial court’s judgment and instead reweigh the evidence in

       her favor, which we cannot do so. The trial court did not clearly err when it

       concluded that the conditions that resulted in Child’s removal will not be

       remedied. 3


                                                     Best Interests


[28]   Mother also asserts that the trial court clearly erred when it concluded that

       termination of her parental rights is in Child’s best interests. In determining


       3
          Mother contends that the evidence does not support the trial court’s finding that the unidentified male she
       had allowed to sleep at her house “was on the sex offender registry.” Appellant’s Br. at 12. The State agrees
       and concedes that “the record does not appear to support the portion of the finding that the man ‘is on the
       sex offender registry.’” Appellee’s Br. at 21. While both parties are correct that the record does not contain
       any evidence that the unidentified male was on the sex offender registry, the evidence does support the
       finding that the male was a convicted sex offender and that Mother had allowed him to stay at her residence
       despite the court order requiring Mother to notify DCS when other people were staying at her home.
       Accordingly, we conclude that the portion of the trial court’s finding that the man was on the sex offender
       registry is immaterial to the trial court’s judgment.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019                Page 20 of 23
       whether termination of parental rights is in the best interests of a child, the trial

       court is required to look at the totality of the evidence. A.S. v. Ind. Dep’t of Child

       Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010). “A parent’s

       historical inability to provide adequate housing, stability and supervision

       coupled with a current inability to provide the same will support a finding that

       termination of the parent-child relationship is in the child’s best interests.”

       Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006),

       trans. denied. “Additionally, a child’s need for permanency is an important

       consideration in determining the best interests of a child.” In re A.K., 924

       N.E.2d at 224.


[29]   When making its decision, the court must subordinate the interests of the

       parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),

       906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a

       child is irreversibly harmed before terminating the parent-child relationship.”

       Id. Moreover, this Court has previously held that recommendations of the

       family case manager and court-appointed advocate to terminate parental rights,

       coupled with evidence that the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id.


[30]   Here, Mother contends that termination was not in Child’s best interests

       because she had made “recent remarkable progress with her sobriety.”

       Appellant’s Br. at 17. Specifically, Mother asserts that the termination of her

       parental rights was not in Child’s best interests because, with additional time

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 21 of 23
       and “more substance abuse treatment that is referred from and paid for by the

       DCS,” there is “a strong possibility that [Child] will not need long-term foster

       care, and can reunify with Mother instead.” Appellant’s Br. at 17.


[31]   Mother’s contentions on appeal again amount to a request that we reweigh the

       evidence, which we cannot do. Child’s court appointed special advocate

       testified that adoption was in Child’s best interests because Mother is not

       “stable enough to guarantee that [C]hild’s going to be in a safe home.” Tr. Vol.

       III at 78. Further, the evidence demonstrates that Mother received referrals for

       several services but that she did not complete any one service.


[32]   Additionally, Mother has continued to abuse drugs. As a result, Mother has

       been arrested and incarcerated several times through the proceedings. As a

       condition of her probation in two of her drug cases, Mother was required to

       complete a rehabilitation program. However, Mother used methamphetamine

       the day she checked into the program, and she left the program early without

       having completed it. That resulted in the State filing two petitions to revoke her

       probation. Further, by her own admission, Mother missed two drug screens

       between leaving her rehabilitation program in mid-November and the fact-

       finding hearing in early December.


[33]   Child needs consistent and reliable care, and she needs permanency. The

       totality of the evidence, including Mother’s substance abuse issues and related

       criminal history and Mother’s failure to complete any service, supports the trial




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 22 of 23
       court’s conclusion that termination of Mother’s parental rights is in Child’s best

       interests. We therefore affirm the trial court’s judgment.


                                                    Conclusion

[34]   In sum, the trial court did not violate Mother’s due process rights when it

       suspended her visitation with Child. And DCS presented sufficient evidence to

       support the trial court’s termination of Mother’s parental rights over Child. We

       therefore affirm the trial court.


[35]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-651 | September 17, 2019   Page 23 of 23
