MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Dec 14 2016, 7:57 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
MOTHER                                                   Gregory F. Zoeller
Renee M. Ortega                                          Attorney General of Indiana
Lake Superior Court, Juvenile Division                   Robert J. Henke
Public Defender’s Office                                 David E. Corey
Crown Point, Indiana                                     Deputy Attorneys General
ATTORNEY FOR APPELLANT                                   Indianapolis, Indiana
FATHER
Deidre L. Monroe
Lake Superior Court, Juvenile Division
Public Defender’s Office
Gary, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 14, 2016
of the Parent-Child Relationship                         Court of Appeals Case No.
of P.W., Father, and T.Y.,                               45A03-1605-JT-1167
Mother, and R.Y., T.Y., &                                Appeal from the
T.C.Y., Minor Children,                                  Lake Superior Court
P.W. and T.Y.,                                           The Honorable
                                                         Thomas P. Stefaniak, Jr., Judge
Appellants-Respondents,
                                                         Trial Court Cause Nos.
        v.                                               45D06-1410-JT-233
                                                         45D06-1410-JT-234
                                                         45D06-1410-JT-235



Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 1 of 27
      Indiana Department of Child
      Services,
      Appellee-Petitioner.




      Kirsch, Judge.


[1]   P.W. (“Father”) and T.Y. (“Mother”) separately appeal the juvenile court’s

      order terminating their parental rights to their children R.Y. and T.Y. Mother

      also appeals the termination of her parental rights to T.C.Y. Parents raise the

      following consolidated and restated issue:

              I. Whether the juvenile court’s order terminating Father’s
              parental rights to R.Y. and T.Y. and Mother’s parental rights to
              R.Y., T.Y., and T.C.Y (collectively, “Children”) are clearly
              erroneous.


      Mother, alone, raises the following restated issue:


              II. Whether Mother’s trial counsel was ineffective.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Mother and Father (together, “Parents”) are the biological parents of R.Y., who

      was born on January 19, 2011, and T.Y., who was born on May 15, 2012.
      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 2 of 27
      Mother is also the biological mother of T.C.Y., who was born on May 31,

      2008.1 In the early morning hours of February 15, 2013, the Indiana

      Department of Child Services (“DCS”) received a call from the East Chicago

      Police Department (“ECPD”) regarding Children being left at home alone. At

      that time, Children were four years, two years, and nine months of age.


[4]   Earlier that evening, an ECPD officer had responded to Mother’s call that she

      and Father were fighting. During the dispute, Father had left, and Mother,

      concerned he was going to slash the tires on her car, called the police. The

      officer assured Mother, who was under the influence of alcohol, that her tires

      had not been slashed. Shortly thereafter, the same officer was again on patrol

      when he saw Mother at a neighborhood gas station putting air in her tires.

      Knowing that Mother had been the only caretaker at the home, the officer

      detained Mother, while other officers went to Mother’s home. There, they

      discovered Children alone and awake. Mother was arrested for public

      intoxication and remained in jail for two or three days. DCS Family Case

      Manager Veronica Martinez (“FCM Martinez”), responding to ECPD’s call to

      assess the situation, arrived at Mother’s home around 2:00 a.m. and found the

      home in “disarray,” and the refrigerator knocked over onto its side. Tr. at 11.

      Efforts to find someone to care for Children were unsuccessful, and Children

      were removed from the home and placed in foster care.




      1
       Father’s brief mistakenly states that he is the Father of all three children. However, DNA testing eliminated
      Father as the biological father of T.C.Y. The identity of T.C.Y’s father is unknown.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016         Page 3 of 27
[5]   On February 19, 2013, DCS filed a petition alleging Children were children in

      need of services (“CHINS”) based, in part, on Mother’s arrest for public

      intoxication and Children having been left alone at home at such young ages.

      A hearing was held that same day, and Mother admitted to the material

      allegations of the CHINS petition. Children were adjudicated CHINS and

      ordered to remain in foster care as temporary wards of DCS. At that time, the

      CHINS court ordered Mother to participate in and comply with services,

      including, drug and alcohol evaluations, clinical assessments, parenting

      assessments, and supervised visitation. Mother was also ordered to submit to

      random drug screens. While Father initially denied the CHINS allegations, the

      CHINS court adjudicated Children were CHINS as to Father when he failed to

      appear at a March 2013 fact-finding hearing. At that time, the court ordered

      him to participate in the same services previously ordered for Mother. During a

      July 2014 permanency hearing, the CHINS court approved concurrent

      permanency plans of reunification and adoption. About one year later, the

      CHINS court changed the permanency plan to adoption.


[6]   Meanwhile, in May 2015, DCS filed petitions to terminate Parents’ parental

      rights to their respective children. The juvenile court held an evidentiary

      hearing on the termination petitions in April 2016 at which Mother, Father,

      FCM Martinez, Caring Corner therapist Sharon Parker (“Therapist Parker”),

      and DCS Family Case Manager Darren Washington (“FCM Washington”) all

      testified. FCM Martinez testified that she spoke with Father a few days after

      Children were removed, and he reported that Mother was drinking on the night


      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 4 of 27
      in question and “when she drinks, she gets argumentative.” Tr. at 13. Father

      had been arrested before for domestic violence against Mother and admitted to

      FCM Martinez that he left the home after Mother called the police because he

      was concerned about again being arrested for domestic violence. Id. at 13, 18.


[7]   FCM Martinez testified that Mother told her that Children had not been left

      alone, instead, a neighbor had agreed to “watch the children, but not in

      [Mother’s] home. [The neighbor] would visually check on the home” from her

      own home across the street. Id. at 14 (emphasis added). FCM Martinez

      learned from police that no one was checking on Children. FCM Martinez

      testified at the April 2016 hearing that it is customary in each case to look at a

      parent’s prior child protective services history and criminal history to

      understand the situation. In this case, FCM Martinez noted that Mother had

      two older children who were living with their father. Additionally, there had

      been an Informal Adjustment in June 2012 regarding Parents’ youngest child,

      T.Y., the details of which FCM Martinez could not recall. FCM Martinez

      recommended, and the CHINS court ordered, Parents to participate in clinical

      assessments, parental assessments, supervised visitation, and substance abuse

      assessments.


[8]   Evidence was also presented that, in 2013, DCS had referred Mother to

      Therapist Parker, who provided Mother with individual therapy and substance

      abuse therapy for over two years (ending July 2015). Therapist Parker testified

      that Mother resisted treatment, believing that Children should never have been

      removed from her home and denying that she had issues “she needed to work

      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 5 of 27
      on.” Tr. at 29-30. About six months later, Therapist Parker found that the

      program was not going well and identified various obstacles, including,

      Mother’s denial of being accountable for poor decision making, Mother’s

      “cognitive deficits,” and Mother’s inconsistency with taking medication

      prescribed to stabilize her mood. Id. at 31-33, 37. Additionally, Therapist

      Parker noted that Mother’s relationship with Father was “toxic” because both

      had a history of substance abuse, which meant that they could thwart each

      other’s attempt to “get clean.” Id. at 35. Therapist Parker testified that Mother

      had no “true progression” with therapeutic services over the next year and a

      half. Id. at 38. While recognizing that Mother attended a group to address

      substance abuse issues, Therapist Parker confirmed that Mother continued to

      have relapses. In fact, Mother was charged with alcohol-related offenses, and

      she had used marijuana on the day before the termination hearing. Id. at 39,

      100. Therapist Parker noted that Mother was not “making much better

      decisions than when [Therapist Parker] first started working with her.” Id. at

      39. Therapist Parker agreed that Mother had plenty of time and opportunities,

      and was able to meet with Therapist Parker, but despite all of that “we are kind

      of right where we started.” Id. at 43. By the time therapy ended, Mother still

      had not admitted that she had a problem. Id. at 44.


[9]   Father also had been referred to Therapist Parker, who identified issues that

      Father needed to work on, including anger and alcohol abuse. Id. at 41.

      Therapist Parker testified that Father lived in Illinois and was inconsistent in

      attending services, even though she offered to meet him in Illinois. He also did

      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 6 of 27
       not respond to her calls. Therapist Parker stated that Father was involved when

       he attended therapeutic services, but his attendance was too inconsistent. She

       opined that Father had made no real progress.


[10]   In February 2014, FCM Washington was assigned to work on concurrent plans

       of reunification and termination. He testified that his focus was Children’s

       safety, stability, and permanency, and he tried to keep Parents compliant with

       the case plans. Id. at 172. Initially, the plan for Children was reunification with

       Father. Father was given the opportunity to participate in numerous services,

       but he failed to participate consistently. Id. at 174. FCM Washington learned

       that Father did not have a job or means of transportation. Id. at 177. FCM

       Washington told Father “he needed to comply with services in order . . . to

       move forward,” but Father “disappeared” and disconnected his phone. Id.

       Father did not get in touch with FCM Washington again until November or

       December of 2014, after Father learned that DCS had filed a petition to

       terminate his parental rights. Id.


[11]   Father was unsuccessful in complying with services, and the juvenile court

       changed the permanency plan from reunification with Father to reunification

       with Mother. Tr. at 174. FCM Washington testified that Mother, initially, was

       able to “go through parenting and then parenting interaction with the

       [C]hildren. She was taking drug screens.” Id. at 175. Abuse of alcohol became

       an issue for Mother and, at the time of the April 2016 fact-finding hearing, she

       had two pending cases for alcohol-related offenses in East Chicago. Id. at 175-

       76. Initially, parenting education was provided by Kitty Taylor (“Taylor”).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 7 of 27
       FCM Washington testified that when he or Taylor visited, Mother had the

       habit of answering the door late or not at all. Tr. at 179. During the CHINS

       and termination proceedings, Mother had positive screens for alcohol. Id. At

       one point, FCM Washington and Therapist Parker spoke with Mother about

       the option of inpatient treatment as a means to address her persistent problem

       with alcohol abuse, drugs, and rage. Id. FCM Washington opined that

       Mother’s condition was serious enough to warrant such treatment, but Mother

       was “vehemently” against it. Id. at 179-80.


[12]   During the entire month of April 2015, Mother did not participate in services.

       Id. at 181. She also did not see Children because she refused to answer the door

       when Taylor brought them for a visit. Id. FCM Washington stated that it was

       difficult to bring about reunification because Mother had made insufficient

       progress on the issue of substance abuse as revealed by her two arrests (March

       2014 and April 2015) for public intoxication. Furthermore, although Mother

       had been referred to a psychiatrist who prescribed medication to stabilize her

       mood, Mother refused to take the medication “because she didn’t know why

       she even had a DCS case in the first place.” Id. at 184. At Mother’s request,

       FCM Washington removed Taylor from the case and replaced her with

       Kimberlee Woods (“Woods”). Mother made no dramatic improvements and

       still refused to answer the door when Woods brought Children for visitation.

       Moreover, Mother again tested positive for alcohol and synthetic marijuana.

       Id. at 185. FCM Washington stressed to Mother the importance of no longer

       using drugs.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 8 of 27
[13]   FCM Washington testified that, although Mother initially did well with

       services, there was a sharp decline in cooperation once Mother resumed contact

       and communication with Father. Id. at 188. It was FCM Washington’s

       opinion that inpatient treatment could have worked, but Mother rejected that

       option twice. Id. at 188-89. FCM Washington maintained that, such treatment

       would have taken Mother away from the neighborhood environment and

       influences that were harmful to her. He opined, “I think those influences are

       going to continue to be there and [Mother] hasn’t done anything to prevent

       those influences from coming in and taking over.” Id. at 189-90.


[14]   In light of Mother’s consistent substance abuse, her continued volatile

       relationship with Father, and her “consistent negative behavior,” FCM

       Washington concluded that Mother’s home would be an unstable and unsafe

       placement for Children. Id. at 187. He testified that, as of the date of the

       permanency fact-finding hearing, DCS was no closer to reuniting Children with

       Mother than it had been when FCM Washington joined the case in February

       2014. Id. at 192-93. He testified that DCS did everything it could to reunite

       Children with Parents; however, it was now in Children’s best interests to

       proceed with the termination of Parents’ parental rights and pursue the

       permanency plan of being adopted by their foster mother. Id. at 193. On April

       27, 2016, the juvenile court entered its order terminating Father’s parental rights

       to R.Y. and T.Y. and Mother’s parental rights to Children. Parents now

       appeal.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 9 of 27
                                      Discussion and Decision

                              I. Termination of Parental Rights
[15]   “The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.” In

       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.

       “However, a trial court must subordinate the interests of the parents to those of

       the child when evaluating the circumstances surrounding a termination.” Id. at

       1188. Termination of a parent-child relationship is proper where a child’s

       emotional and physical development is threatened. Id. “Although the right to

       raise one’s own child should not be terminated solely because there is a better

       home available for the child, parental rights may be terminated when a parent is

       unable or unwilling to meet his or her parental responsibilities.” Id.


[16]   Before an involuntary termination of parental rights may occur, DCS is

       required to allege and prove, among other things:

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


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


               (ii) There is a reasonable probability that the continuation of the
               parent-child relationship poses a threat to the well-being of the
               child.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 10 of 27
                (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).2 DCS’s burden of proof for establishing these

       allegations in termination cases is one of clear and convincing evidence. In re

       H.L., 915 N.E.2d 145, 149 (Ind. Ct. App. 2009). If the court finds that the

       allegations in a petition described in section 4 of this chapter are true, the court

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


[17]   When reviewing a termination of parental rights issue, our court will not

       reweigh the evidence or judge the credibility of the witnesses. In re R.S., 56

       N.E.3d 625, 628 (Ind. 2016). We consider “only the evidence and any

       reasonable inferences therefrom that support the judgment,” and give “‘due

       regard’ to the trial court’s opportunity to judge the credibility of the witnesses

       firsthand.” K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.

       2013). Here, in terminating Parents’ parental rights to their respective children,

       the juvenile court entered specific findings and conclusions. When a trial

       court’s judgment contains specific findings of fact and conclusions thereon, we




       2
        Father and Mother concede that the juvenile court was correct in finding that Children were removed from
       Parents’ care for at least six months under a dispositional decree, thus satisfying the element required under
       Indiana Code § 31-35-2-4(2)(A)(1). Mother’s Br. at 9; Father’s App. at 12-13.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016         Page 11 of 27
       apply a two-tiered standard of review. In re R.S., 56 N.E.3d at 628 (citation

       omitted). First, we determine whether the evidence supports the findings, and

       second, we determine whether the findings support the judgment. Id. (citation

       omitted). We will set aside the court’s judgment terminating a parent-child

       relationship only if it is clearly erroneous. Id. Findings are clearly erroneous

       only when the record contains no facts or inferences drawn therefrom that

       support them. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). A judgment

       is clearly erroneous if the findings do not support the trial court’s conclusions or

       the conclusions do not support the judgment. Id. If the evidence and inferences

       support the trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t of Child

       Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.


[18]   In its April 27, 2016 order terminating Parents’ parental rights, the juvenile

       court entered findings of fact and conclusions thereon. While Mother

       challenges four of the juvenile court’s findings, as we discuss below, Father

       challenges none of the findings. An unchallenged finding is taken as true. See

       McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (accepting as

       true trial court findings that appellant did not challenge). Children were

       removed from Mother’s home on February 15, 2013 and have been under the

       supervision of DCS for at least fifteen of the most recent twenty-two months.

       Mother’s App. at 1, paras. 1, 2.3 The juvenile court found that Parents had been



       3
        The juvenile court does not number its findings. For clarity, we have assigned numbers to each paragraph
       beginning with Paragraph 1 after the phrase, “The allegations of the petition are true,” and ending with
       Paragraph 27 before the phrase, “Further the factors requiring dismissal . . . .” Mother’s App. at 1-5.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016     Page 12 of 27
       previously involved with DCS in connection with an Informal Adjustment

       pertaining to T.Y. having been born testing positive for marijuana. The

       Informal Adjustment was open from June 2012 until December 2012.


                                                    A. Father

[19]   Although he does not contest any of the juvenile court’s findings, Father argues

       that the termination of his parental rights was not supported by clear and

       convincing evidence. He contends that the juvenile court was clearly erroneous

       in concluding that: (1) there is a reasonable probability that: (a) the conditions

       that resulted in the removal of R.Y. and T.Y. or the reasons for placement

       outside Parents’ home will not be remedied; and (b) the continuation of the

       parent-child relationship poses a threat to the well-being R.Y. and T.Y.; (2)

       termination was in the best interests of R.Y. and T.Y.; and (3) there was a

       satisfactory plan for the care and treatment of R.Y. and T.Y.


[20]   In determining whether the conditions that resulted in the removal of R.Y. and

       T.Y. will likely not be remedied, we engage in a two-step analysis. In re E.M., 4

       N.E.3d 636, 642-43 (Ind. 2014). First, we identify the conditions that led to

       removal; and second, we determine whether there is a reasonable probability

       that those conditions will not be remedied. Id. at 643. “In the second step, the

       trial court must judge a parent’s fitness as of the time of the termination

       proceeding, taking into consideration evidence of changed conditions,”

       balancing a parent’s recent improvements against “habitual pattern[s] of

       conduct to determine whether there is a substantial probability of future neglect

       or deprivation.” Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143,
       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 13 of 27
       152 (Ind. 2005). “We entrust that delicate balance to the trial court, which has

       discretion to weigh a parent’s prior history more heavily than efforts made only

       shortly before termination.” In re E.M., 4 N.E.3d at 643. “Requiring trial

       courts to give due regard to changed conditions does not preclude them from

       finding that parents’ past behavior is the best predictor of their future behavior.”

       Id.


[21]   Father, who was not present at the time DCS removed R.Y. and T.Y. from

       Mother’s home, contends they were removed because Mother was drunk, and

       she left them unattended. Father’s Br. at 7. While Father suggests that these are

       conditions he cannot remedy, Father fails to address the juvenile court’s

       uncontested finding that Parents had a history of domestic violence and that

       R.Y. and T.Y. were placed outside the home because Mother was arrested and

       “[F]ather was unavailable.” Mother’s App. at 2, para. 3.4


[22]   The condition of Father’s unavailability has not been remedied. Services were

       offered to Father, including clinical assessment, substance abuse evaluations,

       psychological and psychiatric evaluations, parenting education, individual

       therapy, and domestic violence services. Id. at 2, para. 5. The juvenile court

       found that Father was inconsistent with his services, was highly inconsistent

       with therapy services, and made no progress because he failed to make himself




       4
         Father also suggests that DCS did not intend to reunite him with his children, Father’s Br. at 5. We find no
       evidence to support that statement. Here, Father was provided numerous services and offered supervised
       visitation in an effort to reunite him with his children. Father’s lack of involvement does not change the
       efforts DCS expended on Father’s behalf.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016         Page 14 of 27
       available for services. Id. at 2, para. 7. Anger and abuse of alcohol were major

       factors that Father did not address. The juvenile court found credible Father’s

       testimony that “he made the decision not to participate in any services for

       reunification and voluntarily stopped all services.” Id. at 3, para. 11. Father

       was “totally non-compliant with services and services were stopped July of

       2015.” Id. “After three years of service, [Father is] no closer to reunification

       with [his] children than [he] was three years ago, when the children were

       removed.” Id. at 5, para. 23. “Father voluntarily did not see his children for six

       months. Father was not vested in services, did not visit his children

       consistently, and has shown no interest in parenting these children.” Id. at 3,

       para. 11. The juvenile court’s conclusion that the reasons R.Y. and T.Y. were

       removed in February 2013 have not been remedied and are unlikely to be

       remedied in the near future is not clearly erroneous.5 Id. at 5, para. 23.


[23]   Father also asserts that there was insufficient evidence to support the juvenile

       court’s conclusion that termination of the parent-child relationship was in the

       best interests of R.Y. and T.Y. Father contends that the juvenile court failed to

       address the pain and suffering R.Y. and T.Y. will feel when they realize that




       5
         Father also contends that DCS failed to prove by clear and convincing evidence that there was a reasonable
       probability that the continuation of the parent-child relationship posed a threat to the well-being of R.Y. and
       T.Y. Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of
       parental rights, the juvenile court need only find that one of the requirements of subsection (b)(2)(B) has been
       established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
       Ct. App. 2013), trans. denied. Therefore, finding, as we do, that sufficient evidence supports the conclusion
       that the conditions resulting in the removal of R.Y. and T.Y. will likely not be remedied, we need not also
       address whether sufficient evidence supported the conclusion that the continuation of the parent-child
       relationship posed a threat to the well-being of those children.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016          Page 15 of 27
       they “will not have any further contact with their father or his family.” Father’s

       Br. at 14. Father also asserts that he is young, may have more children, and

       R.Y. and T.Y. “should have a fundamental right to have a relationship with

       their other siblings.” Id. at 15. Father, however, cites to no authority to suggest

       how the above considerations impact a best-interests analysis. Generally,

       failure to make a cogent argument results in waiver of the issue. See A.D.S., 987

       N.E.2d at 1156 n.4 (arguments waived on appeal when mother failed to support

       them with cogent argument). However, considering the significance of

       terminating parental rights, here, we choose to address whether termination of

       Father’s parental rights was in the best interests of R.Y. and T.Y.


[24]   In determining what is in the best interests of a child, the juvenile court must

       look beyond the factors identified by DCS and consider the totality of the

       evidence. A.D.S., 987 N.E.2d 1158. In so doing, the juvenile court must

       subordinate the interests of the parent to those of the child. Id. A 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.


[25]   Here, the domestic violence issues between Mother and Father were a concern

       throughout DCS’s involvement. Father testified that he completed anger

       management counseling in 2013; however, the juvenile court found that

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 16 of 27
       episodes of domestic violence between Parents occurred after that date. Id. at 3,

       paras. 10, 14. Father was totally non-compliant in services and did not contact

       DCS, nor could DCS find him, from about March 2014 until around December

       2014. Tr. at 191. Additionally, Father chose not to participate in any services

       for reunification and voluntarily stopped all services. Mother’s App. at 3, para.

       11. During the three years preceding the termination, all three children were

       able to live together with the same foster mother—the mother who intends to

       adopt them. FCM Washington testified that, as of the date of the permanency

       fact-finding hearing, DCS was no closer to reuniting R.Y. and T.Y. with Father

       than it had been when FCM Washington joined the case in February 2014. Id.

       at 193. FCM Washington testified, and the juvenile court agreed, that DCS did

       everything it could to reunite R.Y. and T.Y. with Father; however, it was now

       in the best interests of R.Y. and T.Y. to proceed with the termination of

       Father’s parental rights and pursue the permanency plan of being adopted by

       their foster mother.6 Tr. at 193. The juvenile court did not err in concluding

       that termination of Father’s parental rights was in his children’s best interests.


[26]   Finally, Father argues that DCS does not have a satisfactory plan for the care

       and treatment of R.Y. and T.Y. FCM Washington testified that he had

       conferred with Children’s foster mother prior to the hearing and that she

       confirmed her interest in adopting Children. Father, however, noting that




       6
        Although attorneys for the Court Appointed Special Advocate (“CASA”) appeared at the evidentiary
       hearing, the CASA did not testify.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 17 of 27
foster mother did not testify at the termination hearing regarding her intent to

adopt Children, maintains that the DCS plan for the future care and custody of

R.Y., T.C.Y., and T.Y. is “marginal at best.” Father’s Br. at 14. We disagree.

Indiana courts have traditionally held that for a plan to be “satisfactory” for the

purposes of the termination statute, it 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 A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App.

2014), trans. denied. A DCS plan that attempts to find suitable parents to adopt

the children is a satisfactory plan. Id. “In other words, there need not be a

guarantee that a suitable adoption will take place, only that DCS will attempt to

find a suitable adoptive parent.” Id. Accordingly, a plan is not unsatisfactory

just because DCS has not identified a specific family to adopt the children. Id.

Here, DCS confirmed that the foster mother intended to adopt Children. The

juvenile court did not err in concluding there was a satisfactory plan for the care

and treatment of R.Y. and T.Y. DCS alleged and proved by clear and

convincing evidence each element of Indiana Code section 31-35-2-4(b)(2). The

juvenile court did not err in terminating Father’s parental rights as to R.Y. and

T.Y.




Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 18 of 27
                                                     B. Mother

[27]   Mother challenges the juvenile court’s findings of fact in Paragraphs 12, 13, 18,

       and 22.7 Addressing Paragraph 12, Mother contends that the fact that she has

       two older children who do not live with her does not support the juvenile

       court’s finding that “Mother does not have custody of any of her children.”

       Mother’s Br. at 5-6; Mother’s App. at 3, para. 12. Here, the juvenile court was not

       concerned with determining who had legal custody of each of Mother’s five

       children; instead, the court was concerned with whether any of those children

       were in Mother’s home and under her care. Viewing the evidence in the light

       most favorable to the juvenile court’s findings, as we must, we cannot say that it

       was error for the juvenile court to find that evidence that all of Mother’s

       children lived outside her home equated to a finding that Mother did not have

       custody of any of her children. See In re Termination of Parent-Child Relationship

       of D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004) (we consider only evidence

       and reasonable inferences most favorable to judgment), trans. denied.


[28]   Mother also argues that, notwithstanding her five years of college, her cognitive

       defects prevented her from engaging in services; therefore, it was error for the

       juvenile court to find in Paragraph 13 that she “is an educated person,” was not

       accepting of therapy, and “did not vest herself in the services.” Mother’s Br. at




       7
        Mother also mentions that the evidence does not clearly and convincingly support Paragraph 24. Mother’s
       Br. at 8. Because Mother fails to support her assertions with argument or citations to the record, her
       argument is waived. See Ramsey v. Madison Cnty. Dep’t of Family & Children, 707 N.E.2d 814, 818 (Ind. Ct.
       App. 1999).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016      Page 19 of 27
       10-11; Mother’s App. at 3, para. 13. Mother asserts that her requests for help

       from FCM Washington and her participation in group therapy undermine the

       juvenile court’s finding in Paragraph 18 that she “did not become vested in the

       services and did not seem willing to remedy the reasons for the removal of the

       children.” Mother’s Br. at 11; Mother’s App. at 4, para. 18. Finally, Mother

       admits that, while there is evidence that she did not answer her door or do

       services for the month of April 2015, those facts, alone, are insufficient to

       support the juvenile court’s finding in regarding Paragraph 22 that she would

       not answer her door for her case manager or to allow the Children to visit.

       Mother’s App. at 5, para. 22. We find Mother’s arguments regarding Paragraphs

       13, 18, and 22 are an invitation for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. In re J.C., 994 N.E.2d 278, 288

       (Ind. Ct. App. 2013). The trial court’s findings in Paragraphs 12, 13, 18, and 22

       are not clearly erroneous.


[29]   Mother also challenges the juvenile court’s conclusions that: (1) there is a

       reasonable probability that: (a) the conditions that resulted in the removal of

       Children or the reasons for placement outside Parents’ home will not be

       remedied; and (b) the continuation of the parent-child relationship poses a

       threat to the well-being of Children; and (2) termination was in the best interests

       of Children.


[30]   Children were removed from Mother’s care when Parents were fighting and a

       refrigerator was knocked onto its side and after Mother had been drinking, left

       Children alone, and was arrested for public intoxication. Mother and Father

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 20 of 27
       had a history of domestic violence. Mother contends that the evidence did not

       clearly and convincingly prove that conditions resulting in removal of Children

       likely will not be remedied. We disagree.


[31]   The CHINS and termination proceedings extended over a period of three years.

       Mother was offered numerous services during that period of time, including

       clinical assessments, supervised visitation, psychiatric and psychological

       evaluations, substance abuse evaluations, and services to address domestic

       violence, anger management, and parenting education. Mother’s App. at 2, para.

       5. Therapist Parker testified that, although Mother initially made herself

       available for services, she did not participate during services, she was resistant

       to take prescribed drugs to stabilize her mood, and she denied she had a

       problem with alcohol. Id. at 3, para. 13. Mother continued her toxic

       relationship with Father even after obtaining a protective order against him. Id.

       at 3, para. 14. It was Mother’s opinion that Children should never have been

       removed from her home and that she did not have anything “she needed to

       work on.” Tr. at 29-30.


[32]   Mother believes she has no problem with alcohol or drugs. Mother’s App. at 4,

       para. 16. On appeal, Mother contends that her use of alcohol is not a habit, but

       directly related to DCS having removed Children from her home. Mother

       claims she was too busy to drink when Children were home and that she drinks

       now to feel better about Children being gone. Mother’s Br. at 13. The evidence,

       however, does not support Mother’s contention that she does not have a

       substance abuse issue. Mother’s history of substance abuse predates DCS’s

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 21 of 27
current involvement in Mother’s life. Mother’s youngest child tested positive

for marijuana at birth resulting in an Informal Adjustment. Mother also

testified that one or two of her arrests between 2008 and February 2013 were

related to alcohol. Tr. at 109, 111. Mother was arrested for public intoxication

on the night Children were removed. In February 2013, referring to Mother’s

prior use of alcohol, Father stated that Mother “became angry and violent when

she was drinking.” Mother’s App. at 2, para. 8. Mother was not able to change

this habitual behavior. Recognizing that Mother attended a group session to

address substance abuse issues, Therapist Parker confirmed that Mother

continued to have relapses, as reflected by subsequent legal charges related to

Mother’s use of alcohol. In fact, Mother even admitted to using marijuana on

the day before the April 2016 evidentiary hearing. Tr. at 100. Therapist Parker

opined that Mother “had plenty of time, plenty of opportunities, was able to

meet with [Therapist Parker], but despite all of that we are kind of right where

we started.” Id. at 43. By the time therapy ended, Mother still had not

admitted that she had a problem. Id. at 44. Based on this evidence, the juvenile

court did not err in concluding that the conditions that resulted in the removal

of Children from Mother will likely not be remedied.8




8
 Like Father, Mother also contends that DCS failed to prove by clear and convincing evidence that there
was a reasonable probability that the continuation of the parent-child relationship posed a threat to the well-
being of Children. DCS must prove only one of the requirements of Indiana Code section 31-35-2-4(b)(2)(B).
A.D.S., 987 N.E.2d at 1156. Finding sufficient evidence that conditions will likely not be remedied, we do
not address the issue of threat.

Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016         Page 22 of 27
[33]   Mother also suggests that the findings do not support the juvenile court’s

       conclusion that termination of the parent-child relationship was in the best

       interests of Children. Mother argues that, in the absence of testimony regarding

       Children’s relationship with Mother and with the foster mother, there was

       insufficient evidence to conclude that termination of Mother’s rights were in the

       best interests of Children. We disagree.


[34]   A determination of the best interests of the children should be based on the

       totality of the circumstances.” In re A.P., 981 N.E.2d 75, 82 (Ind. Ct. App.

       2012). Here, the domestic violence issues between Mother and Father were a

       concern throughout DCS’s involvement. Mother continued her toxic

       relationship with Father even though she had obtained a protective order

       against him. Mother’s App. at 3, para. 14. Mother did not engage during

       services and denied she had a problem with alcohol, yet continued to drink. Id.

       at 3, para. 13. FCM Washington testified that it was in the best interests of

       Children that Mother’s parental rights be terminated. Tr. at 193.


[35]   The juvenile court found:

               The reasons that the children were removed in February of 2013
               have not been remedied by either parent and is [sic] unlikely to
               be remedied in any near future. After three years of services, the
               parents are no closer to reunification with their children than
               they were three years ago when the children were removed.


               Neither parent is providing any emotional or financial support
               for the children. Neither parent has completed any case plan for
               reunification. Neither parent can maintain sobriety and provide

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 23 of 27
               a safe environment for children. The children have been in
               placement since February of 2013 and have never been returned
               to parental care or custody. The children are placed together in
               the home and are bonded and thriving.


       Mother’s App. at 5, paras. 23, 24.


[36]   Mother recognizes that permanency is a central consideration in determining

       what will be in Children’s best interest. Mother’s Br. at 16. Children have been

       out of Mother’s care and have lived together in the same foster home for three

       years, and the foster mother intends to adopt Children. The foster home is a

       place where Children are bonded and thriving. We find no error in the juvenile

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

       interests of Children. The State alleged and proved the elements of Indiana

       Code section 31-35-2-4(b)(2) by clear and convincing evidence, and the juvenile

       court did not err in terminating Mother’s parental rights to Children.


                             II. Effective Assistance of Counsel
[37]   Mother asserts that she received ineffective assistance of counsel. The standard

       for such a review was set forth by our Supreme Court’s in Baker v. Marion

       County Office of Family & Children, 810 N.E.2d 1035 (Ind. 2004) where our

       Supreme Court held:


               Where parents whose rights were terminated upon trial claim on
               appeal that their lawyer underperformed, we deem the focus of
               the inquiry to be whether it appears that the parents received a
               fundamentally fair trial whose facts demonstrate an accurate
               determination. The question is not whether the lawyer might

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 24 of 27
               have objected to this or that, but whether the lawyer’s overall
               performance was so defective that the appellate court cannot say
               with confidence that the conditions leading to the removal of the
               children from parental care are unlikely to be remedied and that
               termination is in the child’s best interest.


       Baker, 810 N.E.2d at 1041. Mother contends that her trial counsel was

       ineffective for failing to: (1) object to questions about her criminal history; (2)

       object to the admission of Mother’s July 2012 police report, State’s Exhibit AA;

       (3) elicit testimony about Mother’s cognitive delays; and (4) elicit testimony

       about her relationship with Children. Mother’s Br. at 18.


[38]   Regarding the failure of Mother’s counsel to object to evidence about Mother’s

       criminal history, items (1) and (2) above, any objection trial counsel could have

       made would have been properly overruled by the juvenile court. A

       determination of a parent’s fitness to care for his or her child requires an

       evaluation of a parent’s habitual pattern of behavior as evidence of possible

       future neglect or deprivation. Bester, 839 N.E.2d at 152. In addressing this

       inquiry, courts may consider factors including a parent’s prior criminal history,

       drug and alcohol abuse, lack of employment, and failure to provide support.

       A.B. v. Ind. Dep’t of Child Servs., 61 N.E.3d 1182, 1189 (Ind. Ct. App. 2016).

       Trial counsel was not ineffective for failing to object to the admission of

       evidence pertaining to Mother’s criminal history.


[39]   Mother also contends that trial counsel was ineffective for failing to investigate

       Mother’s alleged cognitive delay. It is not clear how further investigation

       would have aided Mother’s cause. Therapist Parker’s testimony on the subject
       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 25 of 27
       was strong, suggesting, as she did, that Mother may suffer cognitive deficits that

       could have prevented her from understanding information provided to her

       during therapy. Tr. at 30-32. This testimony alone could have allowed the

       juvenile court to conclude that Mother needed more time to pursue services for

       reunification. However, further inquiry into this subject could have provided

       additional support for the juvenile court’s conclusion that conditions resulting

       in Children’s removal from Mother’s care would not be remedied. On this

       issue, we again find no ineffective assistance of counsel.


[40]   Finally, Mother argues that trial counsel was ineffective for failing to elicit

       testimony about her relationship with Children. Children were removed from

       Mother’s care when they were four years, two years, and nine months of age

       and, during the ensuing three years were not returned to Mother’s care.

       Mother’s App. at 5, para. 24. Mother was inconsistent in her visits with

       Children, and all visitation was terminated in July 2015. State’s Ex. Y at 2. By

       Mother’s own admission, she continued to drink alcohol after Children were

       removed as a way to “socialize and make [her]self happy.”9 Tr. at 93. Under

       these conditions, it is unclear how Children could have had a strong

       relationship with their Mother. However, assuming, arguendo, that they did,

       the reasons for terminating Mother’s parental rights Children still would have

       outweighed any such relationship.




       9
        When asked during the fact-finding hearing whether Mother has “more time to drink and get in trouble
       now,” Mother responded, “No, I’m saying I have more time to socialize.” Tr. at 100.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016    Page 26 of 27
[41]   Here, we can say with confidence that the conditions leading to Children’s

       removal or the reasons for placement outside the home of Mother are unlikely

       to be remedied and that termination of Mother’s parental rights is in the

       Children’s best interests. Mother’s trial counsel was not ineffective, and she

       received a fundamentally fair trial, the facts of which demonstrate an accurate

       determination. Baker, 810 N.E.2d at 1041.


[42]   Finding no error on the part of the juvenile court or Mother’s trial counsel, we

       affirm the juvenile court’s decision to terminate Father’s parental rights to R.Y.

       and T.Y. and to terminate Mother’s parental rights to Children.


[43]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016   Page 27 of 27
