MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                   FILED
regarded as precedent or cited before any                                   Jan 24 2020, 9:14 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 APPELLANT                                    ATTORNEYS FOR APPELLEE
Roberta L. Renbarger                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 24, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of H.M. and S.B. (Minor                                   19A-JT-1607
Children);                                                Appeal from the Allen Superior
W.C. (Mother),                                            Court
                                                          The Honorable Charles F. Pratt,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause No.
                                                          02D08-1809-JT-335
Indiana Department of Child                               02D08-1809-JT-336
Services,
Appellee-Petitioner.



Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020                     Page 1 of 12
                                          Statement of the Case
[1]   W.C. (“Mother”) appeals the trial court’s termination of her parental rights

      over her two minor children, H.M. and S.B. (“the Children”). 1 Mother raises

      two issues for our review, which we restate as follows:


               1.       Whether the trial court clearly erred when it concluded
                        that the conditions that resulted in the Children’s removal
                        from Mother’s care were unlikely to be remedied. 2


               2.       Whether the trial court erred when it concluded that the
                        termination of Mother’s parental rights over the Children
                        was in the Children’s best interests.


[2]   We affirm.


                                    Facts and Procedural History
[3]   On September 27, 2018, the Indiana Department of Child Services (“DCS”)

      filed petitions to terminate Mother’s parental rights over the Children. The trial

      court held a fact-finding hearing on the DCS’s petitions, after which it entered




      1
       Each child’s father has separately appealed the termination of his own parental rights. Although our
      motions panel denied a request to consolidate the three appeals, the appeals were assigned to the same
      writing panel, and we have decided each appeal on the same date.
      2
        Mother mistakenly characterizes this issue as whether the trial court erroneously found that the
      continuation of the parent-child relationships posed a threat to the well-being of the Children. The trial court
      entered no such finding, and the substance of Mother’s argument on this issue makes clear that she intended
      to challenge the finding the court did enter, namely, that the conditions that resulted in the Children’s
      removal were unlikely to be remedied. Accordingly, that is the issue we address.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020                    Page 2 of 12
the following undisputed facts with respect to Mother’s relationship with the

Children:


         5.     . . . [T]here was a physical altercation between the Mother
         and a man on or about July 12, 2016. The incident of domestic
         violence occurred in the presence of the [C]hildren and [one of
         the Children] was struck. On or about August 16, 2016, another
         incident of domestic violence took place in the presence of the
         [child who had been struck]. The Mother was arrested for
         domestic battery. The Mother tested positive for cocaine on or
         about November 11, 2016. The father of the [struck child] tested
         positive for cocaine as well. . . .


                                             *         *        *


         8.     A Dispositional Hearing [in the ensuing child-in-need-of-
         services (“CHINS”) case] was held on October 25, 2017[,] as to
         [M]other. The [Children 3 were] continued in licensed foster care.
         The Dispositional Decree incorporated a Parent Participation
         Plan that required her to [comply with fifteen different
         requirements].


         9.     The Mother was granted supervised visitation with [each
         of the Children]. . . .


         10. A Review Hearing was held on February 8, 2017. The
         Court found that the Mother failed to secure a psychiatric
         evaluation and was not participating in therapy. . . .




3
  The court entered one order for each of the Children. At least with respect to Mother, the orders are
substantially similar, and for ease of readability we have substituted an order’s use of the singular “child”
with the plural “Children” where appropriate.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020                     Page 3 of 12
        11. On July 10, 2018[,] a Permanency Hearing was held. The
        Court found that the Mother had not demonstrated an ability to
        benefit from services . . . .


        12. The Mother has tested positive for methamphetamine
        during the pendency of the underlying CHINS case. From the
        testimony of the toxicologist . . . , the Court finds that the Mother
        tested positive for methamphetamine on November 2, 2018,
        November 28, 2018, and[] December 18, 2018. She also tested
        positive for methamphetamine on January 16, 2019. She tested
        positive for cocaine on March 14, 2017, August 3, [2]017[,] and
        September 4, 2018.


        13. From the testimony of [DCS] case manager Joshua Meyer,
        the [C]ourt finds that the Mother was enrolled in an in-patient
        residential rehabilitation program from July 2018 [through]
        August 2018. Shortly after her release from that program[,] she
        tested positive for cocaine.


        14. The Mother was referred for outpatient therapy and home
        based services to Park Center, Inc. From the testimony of
        [Meyer, t]he Mother did not engage in the services there. The
        Mother was then referred for an assessment and services for
        substance abuse and home based support to Dockside. That
        referral was discontinued due to the Mother’s noncompliance.
        Additionally[,] Dockside determined that the level of care the
        [M]other required was more than that which they could provide.


        15. From the testimony of [Meyer,] the [C]ourt finds that the
        Mother was first referred for medication management to Park
        Center, Inc. She was unsatisfactorily discharged from that
        agency and a new referral was made for her to the Bowen Center.


        16. [DCS] referred the Mother [for] a drug and alcohol
        assessment at C.A.P., Inc. She completed the assessment [i]n

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020   Page 4 of 12
        December[] 2018. The assessment recommended that the
        Mother enroll in an “inpatient treatment program with a follow
        up in a sober living house[.”] She has not enrolled in an
        inpatient program.


        17. The Mother is receiving home based services through
        C.A.P., Inc. based on a December 2018 referral from [DCS].
        Her home based service provider, Pat Geimer, testified that the
        Mother is making an effort in that on or about the week before
        the [f]actfinding [hearing], the Mother admitted that she needed
        help. Her admission, Ms. Geimer testified, is a first step.


        18. Ms. Geimer testified that she has provided the Mother
        with transportation.


        19. At the time of the [f]actfinding [hearing,] the Mother was
        living in a motel, . . . having recently moved from another motel
        that [Geimer] described as “not a good place[.”] The current
        motel residence is not large enough for a family residence.
        [Geimer] testified that the motel is in the proximity of “strip
        joints” and is in a “rough part of town[.”]


        20. The Department has provided referrals to multiple
        agencies for the supervision of Mother’s visits with the
        [Children]. The Mother asserted that she had transportation
        issues with regard to the referral to SCAN, Inc. A second referral
        was made to Dockside. Again[,] she asserted that she lacked
        transportation but was unsure if she had been provided with bus
        passes. A third referral was made to Lifeline and a fourth was
        made to Whittington Services.


        21. The Mother’s assertions regarding transportation issues are
        not entirely supported by the testimony of Lifeline Family
        Consultant, Ashley Bienz. From her testimony[,] the Court finds
        that[,] on October 1, 2018, the [M]other cancelled explaining she

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020   Page 5 of 12
        had car trouble. However, on the third scheduled visit in
        November the Mother called and advised she was in
        Indianapolis. The Mother advised she would be present for the
        next scheduled visits. However, the Mother texted the agency
        and advised that she was again in Indianapolis . . . . Similarly,
        the Court finds from the testimony of Bruno Taylor of
        Whittington that[,] between November 2018[] and January 16,
        2019, the Mother cancelled her scheduled visits with the
        [Children].


        22. The Mother visited the [Children] one time in July 2018[]
        and one time in November 2018. She has not seen the [Children]
        since.


                                          *       *        *


        29. The [Children have] been placed outside the home under a
        dispositional decree for more than six (6) months.


        30. From the testimony [of] Tracy Kearns, the [Children’s]
        licensed foster care provider, the Court finds that [H.M.] was
        suffering from nightmares and anxiety when . . . first placed into
        her care in August 2016 [and S.B. had multiple screaming temper
        tantrums each day]. Since then[, H.M.’s] nightmares have
        decreased and he is less anxious [and S.B. is no longer displaying
        the extreme behaviors].


        31. [H.M.’s] issues and progress in foster care are supported by
        the testimony of Whittington Homes and Services[] therapist[]
        Annette Cook. Therapist Cook provides therapy for [H.M.] She
        is addressing his anxiety and coping mechanisms. She testified
        that [H.M.] is stable in his foster home. . . .




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020   Page 6 of 12
              32. [H.M.’s] therapist also testified that the child exhibits
              Attention [D]eficit Hyperactivity Disorder (ADHD) symptoms
              and is “very order oriented” and requires consistency.


              33. Should parental rights be terminated[,] [DCS] has an
              appropriate plan, that being adoption. The [Children are] in a
              potential pre-adoptive home.


              34. The [Children’s] Guardian ad Litem has concluded that
              the [Children’s] best interests are served by the termination of
              parental rights. In support of his conclusion[,] he testified that
              the parents have not demonstrated . . . continuity of life stability
              [sic]. He also cited the Mother’s recent positive drug screens.


      Appellant’s App. Vol. II at 69, 71-74 (H.M.); 76-80 (S.B.) (record citations

      omitted).


[4]   In light of its findings, the court concluded as follows:


              By the clear and convincing evidence[,] the [C]ourt determines
              that there is a reasonable probability that [the] reasons that
              brought about the [Children’s] placement outside the home will
              not be remedied. Shortly after her inpatient treatment in 2018,
              [Mother] tested positive for cocaine. The Mother has continued
              to use methamphetamine and had a positive test for the illegal
              substance on or about January 26, 2019, a few weeks before the
              commencement of the [f]actfinding [hearing]. The Mother is
              residing in a motel in a neighborhood that is described as being in
              a rough part of town and which is inadequate for the care of the
              [Children]. She only recently took a “first step” toward
              rehabilitation by her admission that she needs help. She has not
              visited her [Children] since November 2018. . . .




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020   Page 7 of 12
      Id. at 74 (H.M.); 80-81 (S.B.). The court further concluded that DCS had a

      satisfactory plan in place for the care and treatment of the Children and that

      termination of Mother’s parental rights was in the Children’s best interests.

      This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[5]   Mother appeals the trial court’s termination of her parental rights over the

      Children. The court’s termination order recites findings of fact and conclusions

      thereon following an evidentiary hearing before the court. As our Supreme

      Court has explained, in such circumstances


              [w]e affirm a trial court’s termination decision unless it is clearly
              erroneous; a termination decision is clearly erroneous when the
              court’s findings of fact do not support its legal conclusions, or
              when the legal conclusions do not support the ultimate decision.
              We do not reweigh the evidence or judge witness credibility, and
              we consider only the evidence and reasonable inferences that
              support the court’s judgment.


      M.H. v. Ind. Dep’t of Child Servs. (In re Ma.H.), 134 N.E.3d 41, 45 (Ind. 2019)

      (citations omitted).


[6]   “Parents have a fundamental right to raise their children—but this right is not

      absolute.” Id. “When parents are unwilling to meet their parental

      responsibilities, their parental rights may be terminated.” Id. at 45-46. To

      terminate parental rights, Indiana Code Section 31-35-2-4(b)(2) (2019) requires

      DCS to demonstrate, as relevant here, that “[t]here is a reasonable probability
      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020   Page 8 of 12
      that the conditions that resulted in the [Children’s] removal or the reasons for

      placement outside the home of the parents will not be remedied” and that the

      “termination is in the best interests of the [Children].”


                        Issue One: Whether The Conditions That Resulted
                                In Removal Will Not Be Remedied

[7]   Mother first asserts on appeal that the trial court’s conclusion that the

      conditions that resulted in the Children’s removal will not be remedied is

      clearly erroneous. In determining whether the conditions that led to a child’s

      placement outside the home will not be remedied, a trial court is required to (1)

      ascertain what conditions led to the child’s removal or placement and retention

      outside the home; and (2) determine whether there is a reasonable probability

      that those conditions will not be remedied. R.C. v. Ind. Dep’t of Child Servs. (In re

      K.T.K.), 989 N.E.2d 1225, 1231 (Ind. 2013). Here, the trial court found that

      DCS had removed the Children from Mother’s care because of incidents of

      domestic violence in the presence of the Children while they were in Mother’s

      care and also because of Mother’s drug use.


[8]   In order to determine whether there is a reasonable probability that the

      conditions that resulted in removal will not be remedied, the court should assess

      a parent’s “fitness” at the time of the termination hearing, taking into

      consideration any evidence of changed conditions. E.M. v. Ind. Dep’t of Child

      Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). The court must weigh any

      improvements the parent has made since removal against the parent’s “habitual

      patterns of conduct to determine whether there is a substantial probability of

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020   Page 9 of 12
       future neglect or deprivation.” Id. When making such decisions, courts should

       consider evidence of a “parent’s prior criminal history, drug and alcohol abuse,

       history of neglect, failure to provide support, lack of adequate housing, and

       employment.” Evans v. St. Joseph Cty. Off. of Fam. & Child. (In re A.L.H.), 774

       N.E.2d 896, 990 (Ind. Ct. App. 2002).


[9]    The evidence demonstrates that Mother continued to test positive for illegal

       substances throughout the proceedings before the trial court. Indeed, Mother

       tested positive for methamphetamine on four different occasions after DCS had

       filed its petitions for the termination of her parental rights. And she tested

       positive for cocaine on three occasions during the CHINS proceedings.


[10]   Mother also failed to successfully complete recommended services. She did not

       engage in the home-based services with Park Center; her referral to Dockside

       was discontinued due to her noncompliance; she was unsatisfactorily

       discharged from Park Center’s medication management program; and she never

       enrolled in a recommended inpatient treatment program. Further, she lacked

       adequate housing at the time of the fact-finding hearing, as she had been living

       in a motel that was not large enough for a family and was located near several

       strip clubs and otherwise in an unsafe area for the Children. Finally, Mother

       visited the Children one time following the DCS’s filings on the petitions to

       terminate.


[11]   The evidence supports the trial court’s findings, and the findings support the

       court’s conclusion that there is a reasonable probability that the conditions that


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020   Page 10 of 12
       resulted in the Children’s removal will not be remedied. Mother’s argument on

       appeal is simply a request for this Court to reweigh the evidence, which we

       cannot do. The trial court did not clearly err when it concluded that there is a

       reasonable probability that the conditions that resulted in the Children’s

       removal or the reasons for placement outside of Mother’s home will not be

       remedied.


                                   Issue Two: Children’s Best Interests

[12]   Mother next contends that the trial court clearly erred when it concluded that

       the termination of her parental rights is in the Children’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 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.


[13]   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.”
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020   Page 11 of 12
       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.


[14]   Here, the Children’s court-appointed special advocate testified that termination

       of Mother’s parental rights was in the Children’s best interests due to her life

       instability and continued drug use. Further, the Children’s therapist testified

       that each child’s mental health had improved since removal from Mother’s care

       and placement in foster care. And, as explained above, the evidence is

       sufficient to show that the conditions that resulted in the Children’s removal

       will not be remedied.


[15]   Children need consistent and reliable care as well as permanency. The totality

       of the evidence, including Mother’s continued substance abuse issues,

       instability, and failure to successfully complete recommended services, supports

       the trial court’s conclusion that termination of Mother’s parental rights is in the

       Children’s best interests. Mother’s argument on this issue is, again, simply a

       request for this Court to reweigh the evidence, which we cannot do. We affirm

       the trial court’s termination of her parental rights.


[16]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1607 | January 24, 2020   Page 12 of 12
