MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                               Dec 21 2015, 6:28 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
MOTHER                                                   Gregory F. Zoeller
Leanna Weissmann                                         Attorney General of Indiana
Lawrenceburg, Indiana
                                                         Robert J. Henke
ATTORNEY FOR APPELLANT                                   David E. Corey
FATHER                                                   Deputy Attorneys General
Jeffrey E. Stratman                                      Indianapolis, Indiana
Aurora, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 21, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of: B.W., Minor Child                                    21A05-1505-JT-511
                                                         Appeal from the Fayette Circuit
                                                         Court
B.F., Father, and W.W., Mother,
Appellants-Respondents,                                  The Honorable Jack A. Tandy,
                                                         Senior Judge
        v.                                               The Honorable Beth A. Butsch,
                                                         Judge
The Indiana Department of Child
                                                         Trial Court Cause No.
Services,
                                                         21C01-1412-JT-324
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015      Page 1 of 18
      Brown, Judge.

[1]   W.W. (“Mother”) and B.F. (“Father”) appeal the involuntary termination of

      their parental rights with respect to their son B.W. Mother and Father raise one

      issue, which we revise and restate as whether the evidence is sufficient to

      support the termination of their parental rights. We affirm.


                                       Facts and Procedural History

[2]   On July 30, 2003, B.W. was born. On May 20, 2011, Father pled guilty to

      dealing in a narcotic drug as a class B felony and being an habitual offender.

      On June 17, 2011, the trial court sentenced Father to the Department of

      Correction (“DOC”) for twelve and one-half years, enhanced by ten years for

      his status as an habitual offender, for an aggregate sentence of twenty-two and

      one-half years. In 2012, Mother was convicted of possession of a controlled

      substance.1


[3]   In June 2013, DCS received reports alleging a lack of supervision of B.W., that

      Mother was using drugs, and that B.W. was a victim/perpetrator of sex abuse.

      Kathy Hobson, a DCS family case manager supervisor, went to the home and

      “found that the allegations were true.” Transcript at 46.




      1
        At the December 3, 2014 hearing, Mother was asked when she was convicted of possession of a controlled
      substance, and she replied: “Um, just about two years ago I think.” Transcript at 18. The record does not
      reveal Mother’s sentence for her conviction.

      Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015       Page 2 of 18
[4]   On July 12, 2013, DCS filed a verified petition alleging that B.W. was a child in

      need of services (“CHINS”). DCS alleged that B.W. had exhibited sexually

      maladaptive behaviors including anally penetrating his five-year-old cousin and

      performing fellatio on him. DCS also alleged that B.W. started fires in his

      home and that Mother’s ability to care for and manage B.W.’s behavior was

      impaired by her drug use.


[5]   On July 16, 2013, the court entered an Order on Initial/Detention Hearing.

      The court found that Father denied the allegations and that Mother admitted

      the allegations. The court appointed an attorney for Father and ordered that

      the detention of B.W. was authorized or necessary to protect him and that it

      was in his best interests to remove him from the home environment. On

      August 14, 2013, the court entered an Order on Admission in which it found

      that both parents admitted the allegation that B.W. was a CHINS.


[6]   On September 6, 2013, the court entered an Order of Participation and a

      Dispositional Order. The court found that Mother and Father admitted that

      B.W. had exhibited sexually maladaptive behaviors including anally

      penetrating his five-year-old cousin and performing fellatio on him. The court

      also found that B.W. was a CHINS because he started fires in his home and

      Mother’s ability to care for and manage his behavior was impaired by her drug

      abuse. The court ordered Mother to contact the case manager every week,

      allow the family case manager to make announced and unannounced visits to

      the home, enroll in recommended services, keep all appointments, not use

      controlled substances, complete a substance abuse assessment and follow all

      Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 3 of 18
      treatment recommendations, submit to random drug screens, and maintain

      suitable, safe, and stable housing. At some point, Mother moved to Richmond

      despite service providers discouraging her from moving away from her support

      and family in Fayette County.


[7]   On December 30, 2013, the court entered an Order on Periodic Case Review

      finding that Mother and Father were incarcerated. On March 21, 2014, the

      court entered an Order on Periodic Case Review in which the court found that

      Mother had not enhanced her ability to fulfill her parental obligations.


[8]   On June 30, 2014, the court entered an Order Approving Permanency Plan in

      which it found that Mother failed to participate in outpatient substance abuse

      treatment on three occasions, declined inpatient treatment, and tested positive

      for hydromorphone, morphine, Alprazolam, and hydrocodone. The court

      found that Father remained incarcerated and was unable to fulfill parental

      obligations, and appointed counsel for Mother. On September 10, 2014, the

      court entered an Order on Periodic Case Review finding that the projected date

      for B.W.’s adoption was March 2015.


[9]   On October 24, 2014, Family Case Manager (FCM) Melissa Sparks, drove to

      Richmond to pick up Mother, who did not have an automobile, to take her to

      Connersville for a family team meeting to discuss visitations and services, but

      Mother did not answer the door at 8:15 a.m. and later said that her alarm did

      not go off and she had overslept. On November 21, 2014, Mother called Sparks

      and said that she wanted to meet with her the following Monday. Sparks told


      Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 4 of 18
       her that she was more than willing to do that; however, Mother then failed to

       contact her. Meanwhile, in September 2014, Mother completed treatment at

       Tara Treatment Centers, but she did not follow through with the recommended

       services including outpatient substance abuse treatment, individual therapy,

       attendance at A.A. meetings, and maintaining contact with a sponsor.


[10]   On December 3, 2014, the court held a review hearing. At the hearing, Sparks

       testified that Mother completed treatment at Tara Treatment Center in October

       2014, but did not consistently stay in contact with her, and that B.W. attempted

       to call Mother twice and was unable to contact her. Melanie Bailey, the court

       appointed special advocate (CASA), testified that she recommended that B.W.

       stay in his current placement, that B.W. loves Mother, that Mother “has refused

       services offered to her from Centerstone,” and that she refused “life skills, basic

       skills . . . .” Id. at 22.


[11]   On December 4, 2014, DCS filed a Verified Petition for Involuntary

       Termination of Parental Rights. On December 17, 2014, the court held an

       initial hearing and appointed counsel for Mother and Father.


[12]   Meanwhile, on December 11, 2014, DCS filed a Motion to Modify

       Dispositional Decree requesting that a change in the permanency plan to

       adoption was appropriate, and that cessation of DCS provided services was

       appropriate because Mother and Father had not complied with them and/or

       failed to benefit from the services. On January 14, 2015, the court held a

       hearing on DCS’s motion and granted it by approving the change of the


       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 5 of 18
       permanency plan to adoption and approving DCS’s request that services to

       parents cease. The court also stated:


               [I]f I guess at some point [Mother] makes a specific request if she
               wants services and is willing to follow through then I would
               certainly look at that and consider that. I’m just saying I don’t
               see this as a permanent order but she needs to step up to the plate
               and do something if she’s serious about it.


       Id. at 38. Despite the order, Sparks still attempted to stop by and contact

       Mother once or twice a month.


[13]   On April 1, 2015, the court held a hearing. Hobson, the family case manager

       supervisor, and Sparks testified. Hobson testified that Mother never completely

       agreed that she had a substance abuse problem. When asked what she meant,

       Hobson stated:


               Um, [Mother] makes lots of um, to make excuses um, she’s not
               using, she is using, she’s using a legal prescription or it’s not . . .
               it’s been a constant battle throughout the case of [Mother]
               struggling with addiction. We’ve made multiple referrals to get
               [Mother] the help that she needs throughout all the different case
               managers. Each different case managers tried to assist [Mother]
               getting off drugs and I believe today she’s under the influence
               still.


       Id. at 51.


[14]   Megan Jackson, an employee at Centerstone and the liaison to DCS, testified

       that Mother completed a substance assessment and had referrals for a substance


       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 6 of 18
       use group, but she was ultimately removed for non-attendance. She also

       testified that she had a referral for supervised visitation, but she was unable to

       schedule those with Mother because she was not able to contact her via

       telephone. Jackson testified that Mother’s first intake was on January 14, 2014,

       but that group sessions did not begin until March 17, 2014, because she had

       difficulty contacting Mother, and that Mother cancelled or failed to show for

       appointments in March, April, June, and July 2014. According to Jackson,

       Mother’s group therapist removed her from the group based on “non-

       attendance and non-investment” in April 2014, Mother was later readmitted to

       the group, and she subsequently cancelled or failed to show for appointments.

       Id. at 95.


[15]   Sparks testified that she was assigned the case in August 2014, that she made

       referrals for detox services, substance abuse treatment, home-based case

       management and therapy, and supervised visitation, and that:

               [Mother] has not been compliant with the services insofar as um,
               she will start and stop a lot of the services that were ordered um,
               she will state that she wants to do the services and referrals will
               be made for those services but then um, [Mother] will only meet
               a couple of times and then be [un]able to be contacted or will not
               show up for services.


       Id. at 56. According to Sparks, Mother ultimately completed inpatient

       treatment at Tara, but did not follow through with any of the recommended

       services, including outpatient substance abuse treatment, individual therapy,

       attendance at A.A. meetings, and maintaining contact with a sponsor. In

       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 7 of 18
       October or November 2014, Mother attended two sessions at Meridian, a

       service provider, but Sparks received an email in January 2015 from Meridian

       indicating that they had not been able to contact Mother and that they were

       going to have to “close that out because they had not met with her . . . .” Id. at

       72. Sparks also stated that Mother was inconsistent with staying in contact

       with any of the service providers or the family case managers, following

       through with goals, and making phone calls to B.W. She further testified that

       Mother failed to contact her on a weekly basis as required by the dispositional

       order, and that Sparks would call and leave messages, but Mother would not

       return the calls.


[16]   With respect to suitable housing, Sparks testified that she went to the address

       Mother provided as her current home several times each month and twice a

       month since December 2014 and knocked on the door, but no one answered,

       and that Mother has not enhanced her ability to parent B.W. because of her

       lack of consistency and her inability to follow through with services and stay in

       contact with DCS.


[17]   With respect to Father, Sparks testified that Father expressed an interest in

       B.W., but due to his incarceration he realizes that he will not be able to provide

       for him. She testified that she had not been able to provide direct services to

       Father because of his incarceration, and that his scheduled release date is 2023,

       at which time B.W. will be an adult.




       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 8 of 18
[18]   The court appointed special advocate (CASA), Melanie Bailey, testified that

       Mother had not been cooperative and did not respond to her texts or calls.

       Bailey suggested to Mother that she write a letter to B.W., but Mother did not

       do so. Bailey testified that she agreed that adoption was in B.W.’s best interest

       because he has improved, now has self-esteem, and has bonded with his foster

       family. On cross-examination, she stated that she believed that Mother wants

       to reunite with B.W. but Mother did not do anything in a committed way.


[19]   DCS presented evidence that Mother tested positive for opiates, including

       hydromorphone and morphine, in March 2014, opiates, including

       hydrocodone, in June 2014, and THC in December 2014.


[20]   Father testified that he had not seen B.W. since 2010, that his scheduled release

       date is 2023, and that he participated in services made available to him at the

       DOC.


[21]   Mother testified that she previously admitted that B.W. was a CHINS in part

       because of her illegal drug use, that she cancelled multiple appointments with

       Centerstone, that she was experiencing “really bad anxiety about everything”

       and could not cope, and that Jackson said that she “would set something up”

       but never did. Id. at 145. When asked whether she stopped using illegal

       substances, Mother answered: “Um, I had a really bad problem and I did work

       on it. I did go to rehab and I think it was detox and um, I have been going to

       narcotic anonymous classes when I can. I’ve done them over the Internet um, I

       am doing better than I have in a very long time so um . . . .” Id. at 147. She


       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 9 of 18
       testified that she moved to Richmond for a fresh start with new people, and that

       she called Sparks every week or more than once a week, but her anxiety and

       depression became so bad that she “couldn’t just beg her anymore.” Id. at 153.


[22]   According to the combined testimony of Sparks, B.W.’s therapist, and the foster

       mother, B.W. was initially defiant, and while at the time of the April 2015

       hearing, he refused to discuss the sexually maladaptive behavior, he was doing

       well generally, had improved, and felt safe in the foster family home.


[23]   On April 28, 2015, the court entered an order terminating Father and Mother’s

       parental rights, making detailed findings of fact, and concluding that there is a

       reasonable probability that the conditions resulting in B.W.’s removal will not

       be remedied, or that continuation of the parent-child relationship poses a threat

       to the well-being of B.W., that termination is in B.W.’s best interests, and that

       adoption is a satisfactory plan for him.


                                                   Discussion

[24]   The issue is whether the evidence is sufficient to support the termination of

       Mother and Father’s parental rights. In order to terminate a parent-child

       relationship, DCS is required to allege and prove, among other things:

               (A) that one (1) of the following is true:
                        (i) The child has been removed from the parent for at least
                        six (6) months under a dispositional decree.
                        (ii) A court has entered a finding under IC 31-34-21-5.6
                        that reasonable efforts for family preservation or
                        reunification are not required, including a description of

       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 10 of 18
                        the court’s finding, the date of the finding, and the manner
                        in which the finding was made.
                        (iii) The child has been removed from the parent and has
                        been under the supervision of a local office or probation
                        department for at least fifteen (15) months of the most
                        recent twenty-two (22) months, beginning with the date
                        the child is removed from the home as a result of the child
                        being alleged to be a child in need of services or a
                        delinquent child;
               (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). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

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


[25]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social
       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 11 of 18
       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. “We do not reweigh the

       evidence or determine the credibility of witnesses, but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from the evidence.” Id. (quoting Egly v. Blackford Cnty. Dept. of Pub. Welfare, 592

       N.E.2d 1232, 1235 (Ind. 1992)). “We confine our review to two steps: whether

       the evidence clearly and convincingly supports the findings, and then whether

       the findings clearly and convincingly support the judgment.” Id.


[26]   “Reviewing whether the evidence ‘clearly and convincingly’ supports the

       findings, or the findings ‘clearly and convincingly’ support the judgment, is not

       a license to reweigh the evidence.” Id. “[W]e do not independently determine

       whether that heightened standard is met, as we would under the ‘constitutional

       harmless error standard,’ which requires the reviewing court itself to ‘be

       sufficiently confident to declare the error harmless beyond a reasonable doubt.’”

       Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

       California, 386 U.S. 18, 87 S. Ct. 824 (1967), reh’g denied). “Our review must

       ‘give “due regard” to the trial court’s opportunity to judge the credibility of the

       witnesses firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

       erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office,

       989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A)).




       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 12 of 18
       A. Remedy of Conditions


[27]   We note that the involuntary termination statute is written in the disjunctive

       and requires proof of only one of the circumstances listed in Ind. Code § 31-35-

       2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we

       limit our review to whether DCS established that there was a reasonable

       probability that the conditions resulting in the removal or reasons for placement

       of B.W. outside the home will not be remedied. See Ind. Code § 31-35-2-

       4(b)(2)(B)(i).


[28]   In making such a determination, the 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 N.Q., 996 N.E.2d 385, 392

       (Ind. Ct. App. 2013). Due to the permanent effect of termination, the trial court

       also must evaluate the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of the child. Id. “The statute does

       not simply focus on the initial basis for a child’s removal for purposes of

       determining whether a parent’s rights should be terminated, but also those bases

       resulting in the continued placement outside the home.” Id. (citation and

       internal quotation marks omitted). A court may properly 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. Id.

       A trial court can reasonably consider the services offered by DCS to the parent

       and the parent’s response to those services. Id. Further, where there are only

       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 13 of 18
       temporary improvements and the pattern of conduct shows no overall progress,

       the court might reasonably find that under the circumstances, the problematic

       situation will not improve. Id.


[29]   Mother and Father argue that DCS presented insufficient evidence to support a

       reasonable probability that the conditions resulting in removal will not be

       remedied. Mother admits that she did not have a “swift path to recovery and

       made some missteps along the way,” but she was combatting her drug

       addiction. Mother’s Brief at 18. She asserts that “she did test positive for pot,

       but compared to an opiate addiction, the use of just marijuana shows major

       progress toward becoming drug free.” Id. at 19. She points to her December

       2014 negative test for opiates following her inpatient therapy.


[30]   Father argues that, although he is not currently scheduled to be released until

       2023, he is making efforts to reduce, modify, or reverse his sentence through

       petitions for post-conviction relief or sentence modification. Without citation

       to the record or authority, he asserts that it is not uncommon for incarcerated

       defendants to receive early release to parole or a reduction in time, especially

       when the inmate is actively participating in services and programs offered by

       the DOC.


[31]   DCS states that Mother and Father do not specifically challenge any of the

       court’s findings of fact, that Mother’s argument continues to minimize her

       substance abuse issues, and that the trial court’s conclusion that Mother and

       Father would not likely remedy their conditions is not clearly erroneous.


       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 14 of 18
[32]   The record reveals that Mother admitted that B.W. was a CHINS in part

       because of her illegal drug use. Since the September 6, 2013 order requiring

       that she not use controlled substances, in March 2014 Mother tested positive for

       opiates, including hydromorphone and morphine, in June 2014 for opiates,

       including hydrocodone, and for THC in December 2014. She did not follow

       through with any of the services recommended after completing inpatient.

       Sparks testified that Mother had not enhanced her ability to parent B.W.

       because of her lack of consistency and her inability to follow through with

       services. The record also reveals that Father’s scheduled release date is 2023,

       when B.W. will be an adult.


[33]   Based upon the court’s findings and the record as set forth in part above, we

       conclude that clear and convincing evidence supports the trial court’s

       determination that there was a reasonable probability that the conditions

       leading to B.W.’s removal would not be remedied.


       B. Best Interests


[34]   We next consider Mother and Father’s assertion that DCS did not present clear

       and convincing evidence that termination was in B.W.’s best interests. They

       state that DCS failed to show the current arrangement is detrimental to B.W.

       beyond the generally accepted notion that children are better off in a stable and

       permanent environment. DCS maintains that the totality of the evidence

       including the testimony of FCM Sparks and CASA Bailey support the trial

       court’s conclusion.


       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 15 of 18
[35]   We are mindful that in determining what is in the best interests of a child, the

       trial court is required to look beyond the factors identified by DCS and to the

       totality of the evidence. McBride v. Monroe Cnty. Office of Family & Children, 798

       N.E.2d 185, 203 (Ind. Ct. App. 2003). In so doing, the court must subordinate

       the interests of the parent to those of the child. Id. The court need not wait

       until a child is irreversibly harmed before terminating the parent-child

       relationship. Id. Children have a paramount need for permanency which the

       Indiana Supreme Court has called a central consideration in determining the

       child’s best interests. In re E.M., 4 N.E.3d at 647-648. However, “focusing on

       permanency, standing alone, would impermissibly invert the best-interests

       inquiry . . . .” Id. at 648. This court has 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. A.D.S. v. Ind. Dep’t of Child Servs., 987

       N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied. This court has

       previously recognized that “[i]ndividuals who pursue criminal activity run the

       risk of being denied the opportunity to develop positive and meaningful

       relationships with their children.” Castro v. State Office of Family & Children, 842

       N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.


[36]   To the extent Father cites In re G.Y., the Indiana Supreme Court issued that

       decision in April 2009, concluding that termination of a mother’s parental

       rights was not in the child’s best interests where mother made a good-faith

       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 16 of 18
       effort to complete the required services available to her in prison, obtained

       suitable housing and gainful employment upon her release, and maintained a

       consistent and positive relationship with the child. 904 N.E.2d at 1263-1264.

       The Court observed that mother had delivered cocaine to a police informant a

       year before the child’s birth and that there were no allegations that mother

       engaged in any criminal behavior during the child’s life. Id. at 1258. Further,

       the Court stated that, at oral argument, mother’s counsel confirmed that her

       projected release date was June 2009 and maybe as early as May. Id. at 1262-

       1263. Unlike the parent in G.Y., Father committed his offense after B.W.’s

       birth, has not seen B.W. since 2010, and his scheduled release date is in 2023

       when B.W. will be an adult.


[37]   The record reveals that, while Mother completed inpatient treatment, she did

       not follow through with any of the services recommended by the service

       providers. Sparks testified that Mother had not been compliant and failed to

       follow through with services or keep appointments or maintain contact with

       DCS. She also testified that Mother had not enhanced her ability to parent

       B.W. CASA Bailey testified that Mother had not been cooperative and that

       adoption was in B.W.’s best interests.


[38]   Based on the totality of the evidence and in light of our deferential standard of

       review, we conclude that the court’s determination that termination is in B.W.’s

       best interests is supported by clear and convincing evidence. See In re J.C., 994

       N.E.2d 278, 290 (Ind. Ct. App. 2013) (observing that “[r]ecommendations of

       the case manager . . . in addition to evidence the conditions resulting in removal

       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 17 of 18
       will not be remedied, are sufficient to show by clear and convincing evidence

       that termination is in the child’s best interests”), reh’g denied; In re A.I., 825

       N.E.2d 798, 811 (Ind. Ct. App. 2005) (testimony of court appointed advocate

       and family case manager, coupled with evidence that conditions resulting in

       continued placement outside the home will not be remedied, is sufficient to

       prove by clear and convincing evidence termination is in child’s best interests),

       trans. denied. See also In re E.M., 4 N.E.3d at 649 (holding that incarceration

       alone cannot justify “tolling” a child-welfare case and concluding that, because

       the trial court could reasonably have reached either conclusion, our deferential

       standard of review is dispositive and it was not clearly erroneous for the trial

       court to conclude that, after three and a half years, Father’s efforts simply came

       too late, and that the children needed permanency even more than they needed

       a final effort at family preservation).


                                                   Conclusion

[39]   We conclude that the trial court’s judgment terminating the parental rights of

       Father and Mother is supported by clear and convincing evidence. We find no

       error and affirm.


[40]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 21A05-1505-JT-511 | December 21, 2015   Page 18 of 18
