MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Apr 08 2020, 10:15 am
regarded as precedent or cited before any
                                                                       CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Joann M. Price Franklin                                   Curtis T. Hill, Jr.
Merrillville, Indiana                                     Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Matter of the                                  April 8,2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of A.B. (Minor                               19A-JT-2368
Child);                                                   Appeal from the Lake Superior
L.B. (Mother),                                            Court
                                                          The Honorable Thomas P.
Appellant-Defendant,
                                                          Stefaniak, Jr., Judge
        v.                                                Trial Court Cause No.
                                                          45D06-1904-JT-125
The Indiana Department of
Child Services,
Appellee-Plaintiff.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020              Page 1 of 13
                                         Statement of the Case
L.B. (“Mother”) appeals the termination of the parent-child relationship with

her daughter, A.B. (“A.B.”), claiming that: (1) the trial court abused its

discretion when it denied her motion for a continuance; and (2) there is

insufficient evidence to support the termination. Finding no abuse of the trial

court’s discretion and sufficient evidence to support the termination, we affirm

the trial court’s judgment.1


We affirm.


                                                Issues
           1.        Whether the trial court abused its discretion when it
                     denied Mother’s motion for a continuance.


           2.        Whether there is sufficient evidence to support the
                     termination of the parent-child relationship.


                                                Facts
The evidence and reasonable inferences that support the judgment reveal that

Mother first became involved with DCS in 2013 when another daughter,

Ang.B. (“Ang.B.”), tested positive for cocaine and opiates at birth. Mother

admitted that she had used hydrocodone and cocaine while she was pregnant.

Ang.B. and her two-year-old sister were removed from the home and placed




1
    A.B.’s alleged father is deceased.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020   Page 2 of 13
with an aunt. The two girls were adjudicated to be children in need of services

(“CHINS”), and Mother was court ordered to participate in services.


Four years later, in September 2017, Mother gave birth to A.B., who also tested

positive for cocaine and opiates. Doctors prescribed morphine to treat A.B.’s

withdrawal symptoms and contacted DCS. The DCS case worker who had

been assigned to the case involving Mother’s two oldest daughters met with

Mother at the hospital. Mother admitted that she had used cocaine and

unprescribed pain pills while pregnant. Mother also admitted that she was

homeless. DCS placed A.B. in foster care when she was discharged from the

hospital. She was not placed with her two older sisters.


A week later, DCS filed a petition alleging that A.B. was a CHINS. Mother

admitted the allegations, and the trial court adjudicated A.B. to be a CHINS.

In November 2017, the trial court also ordered Mother to: (1) participate in a

substance abuse treatment program; (2) participate in home-based services; (3)

participate in individual therapy; (4) maintain suitable, safe, and stable housing;

(5) abstain from the use of drugs; (6) submit to random urine drug screens; and

(7) attend supervised visitation with A.B.


The CHINS case involving Mother’s two oldest daughters was closed in the

spring of 2018 when their aunt was granted a guardianship. In September 2018,

Mother gave birth to daughter Am.B., (“Am.B.”), who tested positive for

cocaine and amphetamines and who was placed on morphine for withdrawal

symptoms. At the time of Am.B.’s birth, Mother admitted to a DCS


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020   Page 3 of 13
caseworker that she: (1) was a heroin addict; (2) had not participated in a

substance abuse treatment program as previously ordered; and (3) had not

consistently visited A.B.


In December 2018, DCS filed a petition to terminate the parental relationship

between Mother and A.B. DCS filed a motion to dismiss the petition when it

learned that Mother was participating in an inpatient substance abuse treatment

program. Mother successfully completed the program but relapsed two to three

months later.


In April 2019, DCS filed a second petition to terminate Mother’s parental

relationship with A.B. At the beginning of the August 2019 hearing, Mother

asked the trial court to continue the hearing for sixty days. Mother specifically

explained that she had completed nineteen days of a twenty-eight-day inpatient

substance abuse program. She asked the trial court for time to complete the

program and maintain her sobriety upon release from the program.


DCS objected to the continuance and pointed out that Mother had had the

opportunity to address her substance abuse issues for six years. DCS further

pointed out that it had previously dismissed a petition to terminate Mother’s

parental rights to allow her to complete an inpatient drug treatment program

and maintain her sobriety upon release from the program. However, Mother

had relapsed two to three months later. The trial court denied Mother’s motion

to continue the hearing.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020   Page 4 of 13
Testimony at the termination hearing revealed that Mother had never fully

complied with the trial court’s order following A.B.’s adjudication as a CHINS.

First, Mother continued to use drugs. Mother’s urine tested positive for cocaine

throughout the proceedings and for fentanyl in May 2019 after DCS had filed

the second petition to terminate Mother’s parental relationship with A.B.

However, Mother’s urine did not test positive for suboxone, which she had

been prescribed to treat her heroin addiction. Second, Mother never

consistently visited A.B. When Mother did attend visitation, the facilitator had

to redirect her and remind her to change A.B.’s diaper and to feed her.

Mother’s visits with A.B. never progressed to unsupervised. Third, Mother

never obtained stable housing. At the time of the hearing, Mother had been

living with her boyfriend in a hotel room for nine months. A DCS caseworker

testified that this was not stable housing for A.B. because Mother and her

boyfriend had a history of domestic violence incidents and the boyfriend had at

times forced Mother to leave the hotel room. According to the case worker,

DCS had told Mother that it would not reunify her with A.B. while she was

living in the hotel with her boyfriend.


Further, although Mother had consistently been attending individual therapy

for a few months leading up to the termination hearing, the therapist testified

that Mother had a history of severe trauma and used drugs to self-medicate.

According to the therapist, even if Mother cooperated, it would take her more

than two years to complete the therapeutic process. Mother’s therapist also




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020   Page 5 of 13
testified that Mother was “on an ongoing risk of relapse” because she had not

internalized “motivation to change her whole self.” (Tr. Vol. 2 at 42).


When asked whether the conditions that had resulted in A.B.’s removal had

been remedied, DCS case manager Kimberly Nilson (“Case Manager Nilson”)

responded that they had not. According to Case Manager Nilson, DCS had

offered Mother all of the services that it possibly could, and Mother had not

been able to maintain her sobriety or find stable housing. The case manager

specifically testified that there was no “end in sight at th[at] point to remedying

those issues.” (Tr. Vol. 2 at 77). Case Manager Nilson further testified that

A.B. had been living with her foster parents for almost two years and that she

had bonded with them and the other children in the home. The plan for A.B.

was foster parent adoption. According to the case manager, termination of

Mother’s parental rights and foster parent adoption was in A.B.’s best interests.


In September 2019, the trial court issued an order terminating Mother’s

parental rights. Mother now appeals.


                                             Decision
Mother argues that the trial court abused its discretion in denying her motion

for a continuance and that there is insufficient evidence to support the

termination. We address each of her contentions in turn.


1.      Denial of Mother’s Motion for a Continuance




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020   Page 6 of 13
Mother first argues that the trial court abused its discretion in denying her

motion for a continuance. The decision to grant or deny a continuance rests

within the sound discretion of the trial court. In re K.W., 12 N.E.3d 241, 243-44

(Ind. Ct. App. 2014). An abuse of discretion occurs when the party requesting

the continuance has shown good cause for granting the motion and the trial

court denies it. Id. at 244. No abuse of discretion will be found when the

moving party is not prejudiced by the denial of its motion. Id.


When considering the appropriateness of a continuance within termination

proceedings, the trial court may consider a parent’s patterns with respect to

attendance, communication, and participation in services during the CHINS

case. In re J.E., 45 N.E.3d 1243, 1247 (Ind. Ct. App. 2015), trans. denied. The

party moving for a continuance must also show that he or she is “free from

fault.” In re B.H., 44 N.E.3d 745, 748 (Ind. Ct. App. 2015), trans. denied.


Here, Mother requested a continuance on the grounds that she was

participating in an inpatient drug treatment program. Mother requested time to

complete the program and maintain her sobriety. DCS objected and pointed

out that Mother had had the opportunity to address her substance abuse issues

for six years. DCS further pointed out that, in December 2018, it had

previously dismissed a petition to terminate Mother’s parental rights to allow

her to complete an inpatient substance abuse treatment program and maintain

her sobriety upon release from the program. However, Mother had relapsed

two to three months later. Based on these facts and circumstances, Mother has



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failed to show good cause for granting the motion, and the trial court did not

abuse its discretion in denying it.


2.      Sufficiency of the Evidence


Mother also argues that there is insufficient evidence to support the

termination. The Fourteenth Amendment to the United States Constitution

protects the traditional right of parents to establish a home and raise their

children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law

provides for termination of that right when parents are unwilling or unable to

meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.

2005). The purpose of terminating parental rights is not to punish the parents

but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

1999), trans. denied.


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

evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

Rather, we consider only the evidence and reasonable inferences that support

the judgment. Id. Where a trial court has entered findings of fact and

conclusions thereon, we will not set aside the trial court’s findings or judgment

unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

whether the court’s decision to terminate the parent-child relationship is clearly

erroneous, we review the trial court’s judgment to determine whether the

evidence clearly and convincingly supports the findings and the findings clearly

and convincingly support the judgment. Id. at 1229-30.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020   Page 8 of 13
A petition to terminate parental rights must allege:


        (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. K.T.K., 989 N.E.2d at 1231.


Here, Mother argues that there is insufficient evidence to support the

termination of her parental rights. Specifically, she first contends that the

evidence is insufficient to show that there is a reasonable probability that the

conditions that resulted in A.B.’s removal or the reasons for placement outside

the parent’s home will not be remedied.


In determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied, we engage in a two-step

analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020   Page 9 of 13
conditions that led to removal or placement outside the home and then

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. The second step requires trial courts to judge a parent’s

fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions and balancing any recent improvements against

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. Habitual conduct may include

parents’ prior criminal history, drug and alcohol abuse, history of neglect,

failure to provide support, and a lack of adequate housing and employment.

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

trans. denied. The trial court may also consider services offered to the parent by

DCS and the parent’s response to those services as evidence of whether

conditions will be remedied. Id. Requiring trial courts to give due regard to

changed conditions does not preclude them from finding that a parent’s past

behavior is the best predictor of his future behavior. E.M., 4 N.E.3d at 643.


Here, our review of the evidence reveals that A.B. was removed from Mother at

birth in September 2017 because of Mother’s drug use and homelessness. A.B.

was Mother’s second child that tested positive for cocaine and opiates at birth.

Nearly two years later, Mother was still using drugs, including cocaine and

fentanyl, and had not been able to maintain stable housing. Further, during the

course of the proceedings, Mother had given birth to a third daughter that had

tested positive for cocaine and amphetamines. This evidence supports the trial

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


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020   Page 10 of 13
that resulted in A.B.’s placement outside the home would not be remedied. To

the extent that Mother highlights her participation in an inpatient drug

treatment program at the time of the termination hearing, the trial court was

well within its discretion to “disregard the efforts Mother made only shortly

before termination and to weigh more heavily Mother's history of conduct prior

to those efforts.” In re K.T.K., 989 N.E.2d at 1234.


Mother also argues that there is insufficient evidence that the termination is in

A.B.’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. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

denied. In so doing, the court must subordinate the interests of the parents to

those of the child involved. Id. Termination of the parent-child relationship is

proper where the child’s emotional and physical development is threatened. In

re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘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

continuation of the parent-child relationship is contrary to the child’s best

interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

denied, superseded by rule on other grounds). Further, the testimony of the service

providers may support a finding that termination is in the child’s best interests.

McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

Ct. App. 2003).

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Here, Mother has historically been unable to provide A.B. with adequate

housing, stability, and supervision, and was unable to provide the same at the

time of the termination hearing. In addition, Case Manager Nilson testified

that termination of Mother’s parental rights and foster parent adoption was in

A.B.’s best interests. The testimony of Case Manager Nilson, as well as the

other evidence previously discussed, supports the trial court’s conclusion that

termination was in A.B.’s best interests.


Last, Mother argues that DCS does not have a satisfactory plan for A.B.’s care

and treatment. This Court has previously explained that the plan for the care

and treatment of the child need not be detailed, so long as it offers a general

sense of the direction in which the child will be going after the parent-child

relationship is terminated. In re L.B., 889 N.E.2d 326, 341 (Ind. Ct. App. 2008).

Here, the DCS caseworker testified that the plan for the care and treatment of

A.B. is adoption. This is a satisfactory plan. See In re A.N.J., 690 N.E.2d 716,

722 (Ind. Ct. App. 1997).


We reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake

has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020   Page 12 of 13
Affirmed.


May, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2368 | April 8, 2020   Page 13 of 13
