MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                            Feb 27 2018, 9:41 am
regarded as precedent or cited before any
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 APPELLANT                                    ATTORNEYS FOR APPELLEE
Leanna Weissmann                                          Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                     Attorney General of Indiana

                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         February 27, 2018
Child Relationship of:                                    Court of Appeals Case No.
                                                          69A01-1710-JT-2331
A.S. (Minor Child)
                                                          Appeal from the Ripley Circuit
and                                                       Court
K.S. (Mother),                                            The Honorable Ryan King, Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          69C01-1703-JT-8
        v.

Indiana Department of Child
Services,
Appellee-Plaintiff



Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018             Page 1 of 14
                                                  Case Summary


[1]   K.S. (Mother) appeals from the involuntary termination of her parental rights to

      A.S. (Child). Mother argues that the trial court’s order terminating her parental

      rights is not supported by clear and convincing evidence. 1


[2]   We affirm.


                                          Facts & Procedural History


[3]   Mother began using illegal drugs in 2011. On October 9, 2013, Mother, who

      was then nineteen years old, gave birth to Child. After Child was born, Mother

      lived with her fiancé, who is not Child’s biological father. Mother’s fiancé is

      also a drug user and has a pending charge for sexual misconduct with a minor.


[4]   When Child was three months old, Mother introduced Child to her paternal

      great-grandparents, D.Z. and W.Z. Mother would regularly leave Child with

      different caregivers, including her mother or sister, but most often she left Child

      in the care of the paternal great-grandparents for days or even weeks at a time.

      Mother would return only for a day or two and then leave again. When

      Mother left Child with the paternal great-grandparents, she would not bring

      food, money, authorization to obtain medical care, or sufficient and appropriate




      1
        Father signed a voluntary consent to termination of his parental rights to Child. Father does not participate
      in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018           Page 2 of 14
      clothing for Child. The paternal great-grandparents were Child’s primary

      caregivers.


[5]   As an example of Mother’s unwillingness to care for Child, D.Z. recounted an

      instance when she had become ill, so W.Z. contacted Mother and asked her to

      pick up Child so D.Z. could rest and recover. Mother, however, did not pick

      up Child, claiming she was taking a trip to New York. On another occasion,

      D.Z. contacted Mother because Child was very sick. Mother told D.Z. to take

      her to the hospital. Mother, however, did not meet them at the hospital and

      never called to see how Child was doing. D.Z. also made sure that Child was

      seen regularly by a doctor and received her vaccinations and she did so despite

      the fact that Mother never provided her with Child’s Medicaid card.


[6]   When Child was around two-and-a-half years old, D.Z. noted that Child had a

      bruise on her face, as well as a black eye and a scratch on her cheek. When

      D.Z. confronted Mother about her concern of physical abuse, Mother admitted

      that she left Child in the care of her fiancé while she ran errands and that when

      she got home and heard Child screaming, her fiancé told her that Child must

      have fallen out of bed. Mother was adamant that her fiancé would never hurt

      Child.


[7]   D.Z. also had concerns about possible sexual abuse. She noted something

      unusual about the appearance of Child’s vagina and that, although Child was

      potty trained, Child would have accidents or hide beside a bed to defecate after

      she had spent time with Mother. D.Z. took Child to the doctor and then the


      Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 3 of 14
       hospital to determine if Child had been sexually abused. Mother attended only

       one of these appointments.


[8]    D.Z. had also become concerned that Mother was using drugs. She noted that

       Mother’s appearance and behavior had changed and that she had become

       forgetful. She recounted how on a cold winter day, Mother, claiming she had

       run out of time, failed to dress Child in anything more than a diaper.


[9]    In January 2016, it was reported to the Department of Child Services (DCS)

       that Mother violated her probation by having a positive drug screen.

       Mistakenly believing it was D.Z. who contacted DCS, Mother picked Child up

       from the D.Z.’s home and told her that she would never see Child again. After

       Mother left with Child, D.Z. contacted DCS. On January 21, 2016, DCS

       located Child at maternal grandmother’s home. Mother was not present,

       maternal grandmother was under the influence of drugs, and drugs were found

       in the home. DCS filed a request for emergency custody, which the court

       granted.


[10]   On January 22, 2016, DCS filed a Verified Petition Alleging Child to be in

       Need of Services (CHINS). Child was initially placed in the care of D.Z.

       Angela Davis, the Family Case Manager (FCM) assigned to Mother, was

       unable to track Mother down for nearly a month, finally getting in touch with

       her by phone on February 24, 2016. FCM Davis noted that during the

       conversation, Mother was slurring her words and was very emotional, leading

       her to believe that Mother was using drugs. Mother also indicated to FCM


       Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 4 of 14
       Davis that she would not participate in supervised visits with Child even though

       FCM Davis explained that such was required given Mother’s drug use. Mother

       also refused to discuss or plan for services offered to help reunify her with

       Child. Subsequently, when a service provider contacted Mother to arrange a

       supervised visit, Mother was rude and dismissive.


[11]   On March 13, 2016, Mother appeared for an initial hearing in the CHINS

       matter and was appointed counsel, but she failed to personally appear for a

       May 9, 2016 fact-finding hearing. On May 11, 2016, the court adjudicated

       Child a CHINS. Mother did not attend a dispositional hearing held on May 23,

       2016, and there was an outstanding warrant for her arrest. In its dispositional

       order, the trial court ordered Mother to stop using drugs, complete a substance

       abuse assessment and follow all recommendations, and submit to random drug

       screens. At the time, the permanency plan was reunification.


[12]   During the pendency of the CHINS matter, Mother spent time in jail on several

       occasions. From March 14 through March 21, 2016, Mother was incarcerated

       in the Ripley County Jail for a probation violation after submitting a positive

       probation drug screen. Two days after her release, Mother tested positive for a

       heroin metabolite. Five days after that, March 28, 2016, Mother tested positive

       for amphetamines and morphine. Based on her continued drug use, a second

       probation violation was filed on March 30, 2016, and a warrant was issued for

       her arrest. Before this arrest warrant was executed, however, Mother was

       arrested in May 2016 in Johnson County for possession of methamphetamine

       and possession of a narcotic drug (heroin) and was incarcerated for two days.

       Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 5 of 14
       She later pled guilty to the charges and was sentenced to 910 days, all

       suspended but for time served.


[13]   In June 2016, Mother admitted to violating her probation as alleged in the

       second probation violation and the court revoked 180 days of her previously

       suspended sentence in Ripley County, but stayed the sentence pending

       Mother’s completion of an inpatient stay at Tara Treatment Center. Mother

       was released from treatment on July 1, 2016, but failed to attend the intensive

       outpatient treatment program recommended by FCM Davis. Rather, Mother

       chose to live with her mother and sister, both of whom were active

       methamphetamine users. On or about July 19, 2016, Mother cooperated with a

       DCS request for a drug screen, testing positive for methamphetamine. On July

       20, Mother again tested positive for amphetamines during a random probation

       drug screen. As a result, a third violation of probation was filed. Mother

       admitted to violating her probation by using illegal drugs, and the trial court

       revoked 185 days of her probation. Mother remained in jail until October 2016.


[14]   Mother failed additional drug screens that were administered by DCS. On

       November 10, 2016, prior to a supervised visit with Child, Mother tested

       positive for methamphetamine. In March 2017, FCM Davis offered Mother

       treatment at a center in Evansville and asked Mother to come in for a phone

       interview and a drug screen. Mother, however, refused to cooperate, despite

       being informed that her refusal would be considered a “dirty screen.” Transcript

       at 48. Mother’s response was that “one more screen wasn’t going to hurt her”

       and then she hung up the phone. Id. On April 21, 2017, prior to a supervised

       Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 6 of 14
       visit with Child, Mother again tested positive for methamphetamine. FCM

       Davis testified that it was difficult to test Mother more regularly because her

       whereabouts were often unknown and she did not keep in touch with DCS.


[15]   Mother was arrested on May 2, 2017, pursuant to an arrest warrant issued after

       she failed to appear for probation appointments in Johnson County. On May

       30, 2017, Mother’s Johnson County probation was revoked. Mother has been

       incarcerated since that time and is anticipated to remain incarcerated until mid-

       2018, unless her sentence is modified.


[16]   With regard to visitation, the record reveals that from January 21, 2016, until

       the time of termination, Mother visited with Child only five times, despite

       numerous referrals for weekly supervised visits. Of the five visits, two of them

       occurred because the visitation supervisor took Child to see Mother while she

       was at the Tara Treatment Center. FCM Davis also made referrals for Mother

       to participate in home-based services, but Mother would not participate or

       maintain contact with FCM Davis so arrangements for the services could be

       made.


[17]   At a January 9, 2017 permanency hearing, the court found that Mother had not

       been compliant with services and approved changing the permanency plan from

       reunification to adoption. Thereafter, DCS filed a Verified Petition for the

       Termination of the Parent-Child Relationship (TPR Petition) on March 29,

       2017. Even though Mother failed to appear at the initial hearing on the TPR

       Petition, the trial court appointed counsel to represent her. On August 14,


       Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 7 of 14
       2017, Mother requested that counsel withdraw his appearance, which motion

       the court denied. The court held a fact-finding hearing on the TPR Petition on

       August 29, 2017. On September 7, 2017, the court entered its order terminating

       Mother’s parental rights. Mother now appeals. Additional facts will be

       provided as necessary.


                                           Discussion & Decision


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

       evidence or judge the credibility of the 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 trial court’s unique position to assess the evidence, we will set aside its

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

       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[19]   The trial court entered findings in its order terminating Mother’s parental rights.

       When the trial court enters specific findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

       Children, 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). A judgment is clearly erroneous


       Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 8 of 14
       only if the findings do not support the court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[20]   We recognize that 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.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[21]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:


               (B) that one (1) of the following is true:


                        (i) There is a reasonable probability that the conditions
                        that resulted in the child’s removal or the reasons for
                        placement outside the home of the parents will not be
                        remedied.


                        (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 69A01-1710-JT-2331 | February 27, 2018   Page 9 of 14
                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child and that there is a

       satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

       4(b)(2)(C), (D).


[22]   Mother first challenges the trial court’s findings as to subsections (b)(2)(B)(i)

       and (ii). We note that DCS was required to establish only one of the three

       requirements of subsection (b)(2)(B) by clear and convincing evidence before

       the trial court could terminate parental rights. See In re L.V.N., 799 N.E.2d 63,

       69 (Ind. Ct. App. 2003). Here, the trial court found that DCS presented

       sufficient evidence to satisfy two of those requirements, namely, that there is a

       reasonable probability the conditions resulting in Child’s removal or continued

       placement outside Mother’s care will not be remedied and that the continuation

       of the parent-child relationship poses a threat to Child’s well-being. See I.C. §

       31-35-2-4(b)(2)(B)(i), (ii). We focus our inquiry on the requirements of

       subsection (b)(2)(B)(i)—that is, whether there was sufficient evidence to

       establish a reasonable probability that the conditions resulting in Child’s

       removal or continued placement outside Mother’s care will not be remedied.


[23]   In making such a determination, the trial court must judge a parent’s fitness to

       care for his or her child 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. The court must also evaluate the parent’s
       Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 10 of 14
       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation of the child. Id. In making this

       determination, courts may consider 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. A.F. v. Marion Cnty. Office of

       Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.


[24]   The court may also consider the parent’s response to the services offered

       through DCS. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,

       372 (Ind. Ct. App. 2007), trans. denied. “A pattern of unwillingness to deal with

       parenting problems and to cooperate with those providing social services, in

       conjunction with unchanged conditions, support a finding that there exists no

       reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d

       at 210. Moreover, the failure to exercise parenting time demonstrates a “lack of

       commitment to complete the actions necessary to preserve [the] parent-child

       relationship.” Lang, 861 N.E.2d at 372 (quoting In re A.L.H., 774 N.E.2d 896,

       900 (Ind. Ct. App. 2002)) (alteration in original).


[25]   In its order terminating Mother’s parental rights to Child, the court detailed

       Mother’s continued drug use, her criminal history, her failure to visit Child or

       participate in services during the pendency of the CHINS action, and her lack

       of employment and stable housing. Indeed, as noted by the court, by the time

       of Mother’s last arrest, she was a frequent user of methamphetamine and

       heroin. After Child was removed from Mother, Mother was arrested and

       incarcerated several times, and yet she resumed using drugs after each

       Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 11 of 14
       detention. Mother did not cooperate with FCM Davis and she completed no

       CHINS-related services. Mother did complete a three-week inpatient treatment

       program, but did so to avoid serving six months in jail. Since Child’s removal,

       Mother visited with Child only five times, two of which happened because a

       service provider took Child to see Mother. Prior to at least two other visits,

       Mother tested positive for drugs.


[26]   Mother’s pattern of continued drug use, her repeated arrests and violations of

       probation that are directly related to such drug use, and her failure to visit Child

       or participate in any services all demonstrate that Mother is unwilling or unable

       to take the steps necessary to be an adequate parent for Child. The trial court

       was not required to credit Mother’s testimony at the TPR Hearing that she is

       now ready to overcome her addiction and parent Child. The trial court’s

       finding that there is a reasonable probability that the conditions resulting in

       Child’s removal or continued placement outside Mother’s care will not be

       remedied is not clearly erroneous.


[27]   Mother also challenges the court’s finding that termination is in Child’s best

       interests. In determining whether termination of parental rights is in the best

       interests of a child, the trial court is required to look beyond the factors

       identified by DCS and consider the totality of the evidence. In re J.C., 994

       N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court must

       subordinate the interest of the parent to those of the child, and the court need

       not wait until a child is irreversibly harmed before terminating the parent-child

       relationship. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 12 of 14
       185, 199 (Ind. Ct. App. 2003). Our Supreme Court has explained that

       “[p]ermanency is a central consideration in determining the best interests of a

       child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have

       previously held that the recommendations of the case manager and court-

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

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

       clear and convincing evidence that termination is in the child’s best interests.”

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


[28]   Mother argues that the court’s determination that termination is in Child’s best

       interests was clearly erroneous because it was based on the court’s speculation

       that Mother would relapse after completing drug treatment and being released

       from jail. We disagree. The trial court’s determination that termination was in

       Child’s best interests was not based solely on speculation that Mother would

       relapse. While the trial court recounted in detail Mother’s continued drug use,

       the court also considered Mother’s failure to participate in supervised visits and

       services offered by DCS. The court also considered testimony from Child’s

       pediatrician that Child suffers from PTSD and has an attachment disorder and

       that it is imperative that Child be placed in a safe and stable home. The trial

       court summarized Child’s pediatrician’s testimony, noting that Child “is at a

       critical age in her brain development where there still exists a possibility that

       [she] can overcome her mental illness and thrive” if placed in the appropriate,

       therapeutic environment that was being provided by Child’s adoptive foster

       family. Appellant’s Appendix at 15.


       Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 13 of 14
[29]   Further, we have already concluded that the evidence is sufficient to support the

       court’s finding that the conditions resulting in Child’s removal and continued

       placement outside Mother’s care will not be remedied. In addition, Child’s

       pediatrician, FCM Davis, and Child’s court appointed special advocate all

       recommended termination of Mother’s parental rights. This is sufficient

       standing alone to support the court’s finding that termination is in Child’s best

       interests. The court’s determination that termination of Mother’s parental

       rights is in Child’s best interests is not clearly erroneous.


[30]   Judgment affirmed.


       May, J. and Vaidik C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 69A01-1710-JT-2331 | February 27, 2018   Page 14 of 14
