MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                        Nov 27 2019, 10:53 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 D.J.                              ATTORNEYS FOR APPELLEE
Christopher J. Evans                                     Curtis T. Hill, Jr.
Dollard Evans Whalin LLP                                 Attorney General
Noblesville, Indiana
                                                         Robert J. Henke
ATTORNEY FOR APPELLANT T.W.                              Deputy Attorney General
                                                         Indianapolis, Indiana
Anne Medlin Lowe
James A. Piatt
Riley Williams & Piatt, LLC
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         November 27, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of A.J. and J.R. (Minor                                  19A-JT-1176
Children) and T.W. (Mother)                              Appeal from the
and D.J. (Father of A.J.)                                Hamilton Circuit Court
                                                         The Honorable
                                                         Paul A. Felix, Judge
T.W. (Mother of A.J. and J.R.)
                                                         The Honorable
and D.J. (Father of A.J.),
                                                         Todd L. Ruetz, Magistrate
Appellants-Respondents,
                                                         Trial Court Cause Nos.
                                                         29C01-1808-JT-1193
        v.
                                                         29C01-1808-JT-1194




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019                Page 1 of 14
      Indiana Department of Child
      Services,
      Appellee-Petitioner




      Vaidik, Chief Judge.



                                             Case Summary
[1]   T.W. (“Mother”) appeals the termination of her parental rights to her two

      children, A.J. and J.R. (collectively, “Children”). D.J. (“Father”) separately

      appeals the termination of his parental rights to his daughter, A.J. We affirm.



                              Facts and Procedural History
[2]   The following facts are set forth in the trial court’s findings, none of which

      Father or Mother (collectively, “Parents”) challenges on appeal.1 In 2011,

      Mother pled guilty and was sentenced for committing numerous offenses: Class

      D felony unlawful possession of a syringe and Class C misdemeanor operating

      a vehicle while intoxicated (OWI) in March, see 29D06-1008-FD-7195; Class D




      1
       Because neither Mother nor Father challenge the trial court’s findings of fact, we accept them as true. See
      Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019                 Page 2 of 14
      felony unlawful possession of a syringe in May, see 29D06-1105-FC-10043; and

      Class D felony possession of a controlled substance, see 29D06-1101-FD-953,

      and Class A misdemeanor OWI endangering a person, see 29D06-1102-CM-

      10522, in July. The sentences for these five offenses were to run consecutively.

      In August, while Mother was waiting to be transferred to the Department of

      Correction (DOC), she gave birth to A.J., who was born with special needs,

      including club feet. After A.J. was born, Mother was sent to the DOC while

      Father took care of A.J.


[3]   In June 2012, Mother was released from the DOC to community corrections.

      Then in December she was released to probation. After release, Mother was

      given primary custody of A.J. Around that time, Parents’ relationship began to

      deteriorate, and in September 2013 Father was charged with Class A

      misdemeanor invasion of privacy for violating a protective order protecting

      Mother. See Ex. 11; see also 29D03-1310-CM-8579. He later pled guilty and

      was sentenced to 365 days, which were suspended to probation.


[4]   In July 2014, J.R. was born to Mother and J.E.R.2 Six months later, the

      Department of Child Services (DCS) became involved with Children because

      there were concerns that Mother was abusing substances and that there was

      instability in her home—evidenced by bruising all over her face likely caused by

      domestic violence. There was also a concern that Mother was not adequately




      2
          J.E.R. voluntarily relinquished his parental rights to J.R. and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019                      Page 3 of 14
      tending to A.J.’s special needs. A.J. requires therapy and braces to help her

      walk because of her club feet. DCS opened an Informal Adjustment (IA) to

      provide services, but Mother did not engage in services and continued to miss

      A.J.’s medical appointments. On December 24 and 26, Mother tested positive

      for amphetamine and Oxycodone.


[5]   In January 2015, Mother again tested positive for amphetamine. On January

      20, DCS discovered that three-year-old A.J. had thirty-two absences during her

      first semester of developmental preschool and thirty absences during the second

      semester. This meant that A.J. was not receiving occupational, physical, and

      speech therapy, which were all provided to her at the developmental preschool.


[6]   Two months later, in March 2015, DCS learned that J.R. was physically

      delayed two to four months. That is, eight-month-old J.R. could not roll over

      and sit up on her own and did not know how to swallow solid food. Despite a

      pediatrician’s referral, Mother did not take J.R. to be evaluated for poor muscle

      tone and lack of development. Then on March 13, Mother contacted DCS and

      told them that she was “homeless and living in her van” and “is struggling to

      keep[] it all together.” Ex. 1. Three days later, Mother contacted DCS again

      and said that “her girls have developmental needs that she has not been able to

      stay on top of those responsibilities due to her living circumstances as well as all

      of her court ordered responsibilities.” Id. Later that day, DCS removed

      Children.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019   Page 4 of 14
[7]   DCS then filed a petition alleging that Children were in need of services

      (CHINS). The petition alleged that Mother failed to participate in the services

      required by the IA to address Children’s medical and developmental needs and

      that she was unable to maintain stable housing. See Ex. 1. The CHINS petition

      also stated that Father did not have legal custody of A.J. Then on March 27,

      Mother was charged with Level 6 felony OWI endangering a person, Level 6

      felony OWI with a prior conviction, Class A misdemeanor OWI endangering a

      person, and Class C misdemeanor OWI. See Ex. 4.


[8]   A fact-finding hearing on the CHINS petition was held in August 2015. The

      trial court found that Children were CHINS and ordered that Children continue

      to be detained. In September, following a dispositional hearing, the court

      ordered that Parents participate in services, including visitation, drug screens,

      substance-abuse assessments, and any other referred services. The court also

      ordered that Parents keep in contact with DCS, communicate any criminal

      charges, and obtain and maintain a legal and stable source of income and

      housing.


[9]   Initially, Parents were somewhat engaged in services and had visits with

      Children. However, Mother’s new OWI charges constituted a violation of her

      probation. Her probation was revoked, and she was incarcerated from October

      2015 to August 2016. While Mother was incarcerated, she pled guilty to Level

      6 felony OWI endangering a person stemming from her March 2015 charges.

      At the same time, Father continued to have visits with A.J. but did not attend

      any of her medical appointments. After Mother was placed on work release in

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019   Page 5 of 14
       September 2016, she reengaged with services. Father also complied with

       services during the fall of 2016. Parents’ compliance, however, was short lived.


[10]   In February 2017, Father tested positive for illegal substances, including

       methamphetamine, and failed to appear for four drug screens. At the same

       time, Mother was participating in services but was “consistently late to her

       appointments and returning to community corrections.” Father’s App. Vol. II

       p. 12. By June, DCS requested that Mother’s visits be suspended because

       Mother’s “continued instability and inconsistencies” caused Children to have

       “anxiety prior to having a visit with [Mother] and [were] described as

       ‘dysregulated’ after the visits.” Id.; Ex. 2. At the December 2017 permanency

       hearing, the trial court found that:


               All services have been stopped for [M]other per court order,
               Mother was incarcerated for most of the current report period.
               She was released for 6 days before being arrested again and has
               now been released again. Mother has failed to demonstrate any
               progress in enhancing her ability to fulfill her parental obligations
               through obtaining services on her own. Father continues to test
               positive for illegal substances, including heroin, morphine,
               methamphetamine, amphetamine, and THC.


       Father’s App. Vol. II p. 13. The trial court also noted that on December 4,

       Father was arrested and charged with Level 6 felony possession of

       methamphetamine and Level 6 felony possession of a narcotic drug. See Ex. 10;




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019   Page 6 of 14
       see also 27C01-1807-F6-400.3 The court found, “Father cannot raise [A.J.] or

       influence [A.J.] by seeing her once a week in a fully supervised setting and then

       spending the rest of the week using illegal substances.” Id. At the March 2018

       permanency hearing, the trial court suspended all reunification services,

       including visitation for Father, and found that Mother had not visited Children

       since July 2017.


[11]   In April 2018, Mother was charged with Level 6 felony operating a vehicle as a

       habitual traffic violator. See Ex. 3; see also 29D05-1804-F6-3029. In June, she

       was denied acceptance into Community Corrections. At the permanency

       hearing in July, the trial court found that “Mother continues to demonstrate

       poor judgment and lack of stability which has been an ongoing issue

       throughout the duration of the case. Father admits to recent use of heroin.”

       Father’s App. Vol. II p. 14.


[12]   In August 2018, DCS filed petitions to terminate Parents’ parental rights to A.J.

       and to terminate Mother’s parental rights to J.R. A fact-finding hearing was

       held in November. Father appeared but Mother did not, so the trial court

       continued the fact-finding hearing to give Mother an opportunity to appear.

       The fact-finding hearing resumed in January 2019. Father appeared with

       counsel and Mother’s counsel appeared but, once again, Mother failed to

       appear. Mother’s counsel requested a continuance, which the trial court




       3
           This case is currently pending with a jury trial set for January 2020.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019   Page 7 of 14
granted. In February, the fact-finding hearing resumed. Jane Privett, Mother’s

community-corrections case manager, testified that Mother continually violated

the conditions of her community-corrections placement. Privett said that she

believed Mother was “highly intelligent” and that her failure to adhere to

community corrections’ rules was a matter of “would not” as opposed to “could

not.” Tr. Vol. II pp. 44, 46. Family Case Manager (FCM) Morgan Loudermilk

testified that she worked with the family for about a year-and-a-half and that

during that time “[Father] consistently had positive drug screens for numerous

different substances,” including heroin and THC. Id. at 135. As for Mother,

FCM Loudermilk said that she would start services but never “successfully

completed the recommendations.” Id. at 126. FCM Loudermilk stated that she

believes that termination of Parents’ parental rights is in Children’s best

interests. See id. at 143. The family’s current FCM, Alicia Holcombe, testified

that she “do[es] not believe that [Mother] has proven her willingness or ability

to care for [Children] at this time due to lack of participation in court-ordered

services.” Id. at 177. Regarding Father, FCM Holcombe stated that she had to

do “an investigative referral” to find Father and that she is concerned that

Father is still using illegal substances. Id. at 181. FCM Holcombe said that she

is also concerned that Father has a pending charge for possession of

methamphetamine and that Mother was recently charged with operating a

vehicle as a habitual traffic offender. See id. at 179. FCM Holcombe stated that

she believes that termination of Parents’ parental rights is in Children’s best

interests. See id. at 183.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019   Page 8 of 14
[13]   Guardian ad litem (GAL) Julie Kirby testified that Children “have ongoing

       medical needs. There’s been lots of appointments that [Mother] was invited to

       and could attend and didn’t. [Children] need a lot of care and we don’t have

       evidence that that would be provided.” Id. at 89. As for Father, GAL Kirby

       said that Father did not make any progress in services and continued to test

       positive for drugs, such as meth and heroin. Id. at 90-91. GAL Kirby said that

       she believes that termination of Parents’ parental rights is in the best interests of

       Children. See id. at 96. A.J.’s therapist, Katy Shapiro, testified that her concern

       is “Parents’ ability to maintain sobriety in order to take care of and meet

       [Children’s] needs.” Id. at 73. Therapist Shapiro said that when her services

       ended in July 2018, A.J. said that she wanted to live with her foster family. See

       id. at 83. Children’s foster mother, S.C., testified that Children have lived with

       her and her family for “about two and a half years.” Id. at 167. S.C. said that

       her family wants to adopt Children and that she “can’t imagine a life without

       them.” Id. at 172. In May 2019, the trial court issued its order terminating

       Parents’ parental rights to A.J. and Mother’s parental rights to J.R.


[14]   Father and Mother separately appeal.



                                  Discussion and Decision
[15]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.

       2013). Rather, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment of the trial court. Id. When a trial court has

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019   Page 9 of 14
       entered findings of fact and conclusions, we will not set aside the trial court’s

       findings or judgment unless clearly erroneous. Id. To determine whether a

       judgment terminating parental rights is clearly erroneous, we review whether

       the evidence supports the trial court’s findings and whether the findings support

       the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[16]   A petition to terminate parental rights must allege, 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.


                       (iii) The child has, on two (2) separate occasions, been
                       adjudicated a child in need of services;


               (C) that termination is in the best interests of the child; and


               (D) that there is a satisfactory plan for the care and treatment of
               the child.


       Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019   Page 10 of 14
       finds that the allegations in a petition are true, the court shall terminate the

       parent-child relationship. Ind. Code § 31-35-2-8(a).


[17]   Parents first argue that there is insufficient evidence to support the trial court’s

       conclusion that the conditions resulting in Children’s removal will not be

       remedied. In determining whether the conditions that resulted in a child’s

       removal will not be remedied, the trial court engages in a two-step analysis.

       First, the trial court must ascertain what conditions led to the child’s placement

       and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial

       court determines whether there is a reasonable probability that those conditions

       will not be remedied. Id. “The trial court must consider a parent’s habitual

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

       future neglect or deprivation.” Id.


[18]   Here, Parents failed to demonstrate that they were any closer to providing

       Children a safe, stable home than they were at the beginning of the CHINS

       case. The trial court’s unchallenged findings on this issue support its conclusion

       that the conditions resulting in Children’s removal will not be remedied. See,

       e.g., In re E.M., 4 N.E.3d 636, 644 (Ind. 2014) (findings regarding father’s non-

       compliance with services support trial court’s conclusion that conditions

       resulting in children’s removal from father’s care would not be remedied). That

       is, the trial court found:


                                                      *****




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019   Page 11 of 14
            28. Throughout the duration of the CHINS matter, Mother
            failed to follow through with any of the services that were in
            place to attempt to assist Mother in safely reunifying with
            [Children].


                                               *****


            29. Father has also failed to follow through with the services
            that were in place in order to attempt to assist Father in safely
            reunifying with [A.J.].


            30. It has been four years since DCS and the Court became
            involved with this family and neither Mother nor Father have
            made any demonstrable progress in enhancing their ability to
            safely and appropriately provide for the care and supervision
            of [Children].


            31. Due to Mother’s own decision to continue to engage in
            criminal activity, the prognosis for any stability for any period
            of time is poor at best[.]


                                                ****


            42. Father admits to a continued struggle with substance
            abuse and to testing positive for methamphetamine two
            months ago, knowing that these proceedings were in progress
            and that his parental rights were at stake.


Father’s App. Vol. II pp. 14-16. Accordingly, the trial court did not err when it

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




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019   Page 12 of 14
       Children’s removal and continued placement outside the home will not be

       remedied.4


[19]   Parents next argue that the trial court erred in concluding that termination is in

       Children’s best interests. To determine what is in the child’s best interests, the

       trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d

       1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must

       subordinate the interests of the parents to those of the child. Id. The trial court

       need not wait until the child is irreversibly harmed before terminating the

       parent-child relationship. Id. Moreover, we have previously held that the

       recommendation by both the case manager and child 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. Id. at 1158-59.


[20]   Here, FCM Loudermilk, FCM Holcombe, and GAL Kirby all testified that

       terminating Parents’ parental rights is in Children’s best interests. See Tr. pp.

       96, 143, 183. Furthermore, the trial court found that Children have been out of

       Parents’ care for most of their lives, including the most formative years. See

       Mother’s App. Vol. II p. 32 (Finding 37); Father’s App. Vol. II p. 17 (Finding




       4
         Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
       resulted in Children’s removal will not be remedied, we do not address its alternate conclusion that there is a
       reasonable probability that the continuation of the parent-child relationships pose a threat to the well-being of
       Children. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-4(b)(2) is
       written in the disjunctive and requires the trial court to find only one of the two requirements of subsection
       (b) has been established by clear and convincing evidence), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019                  Page 13 of 14
       49); see also In re K.T.K., 989 N.E.2d at 1230 (finding that “children have an

       interest in terminating parental rights that prevent adoption and inhibit

       establishing secure, stable, long-term, continuous relationships”). Finally, the

       trial court concluded that Children’s “current foster home is well equipped to

       meet [Children’s] needs and has demonstrated the ability to do so.” Mother’s

       App. Vol. II p. 32 (Finding 38); Father’s App. Vol. II p. 17 (Finding 50); see also

       In re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct. App. 2004) (children’s needs are too

       substantial to force them to wait while determining if their parents will be able

       to parent them). As such, the trial court did not err when it determined that

       termination is in Children’s best interests.


[21]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1176 | November 27, 2019   Page 14 of 14
