MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Oct 01 2018, 9:24 am

court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cristin L. Just                                           Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana
                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
In Re the Termination of the                              October 1, 2018
Parent-Child Relationship of:                             Court of Appeals Case No.
L.C. (Minor Child)                                        18A-JT-859
                                                          Appeal from the Jasper Circuit
and                                                       Court
                                                          The Honorable John D. Potter,
K.W.,                                                     Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          37C01-1709-JT-206
        v.

The Indiana Department of Child
Services,
Appellee-Petitioner.



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018                   Page 1 of 15
                                                   Case Summary
[1]   K.W. (“Mother”) appeals the termination of her parental rights to her child,

      L.C. We affirm.


                                                            Issue
[2]   Mother raises one issue, which we restate as whether the evidence is sufficient

      to support the termination of her parental rights.


                                                            Facts
[3]   L.C. was born on December 11, 2016, to Mother and J.C. (“Father”). 1 At the

      time, Mother had another child removed from her care in White County due to

      Mother’s mental health and substance abuse issues, and Mother was not

      compliant with the services offered by the White County Department of Child

      Services. Mother tested positive for opiates at the time of L.C.’s delivery, and

      L.C. exhibited withdrawal symptoms. L.C.’s meconium then tested positive for

      marijuana and opiates. The Jasper County Department of Child Services

      (“DCS”) received a report regarding L.C. and removed L.C. from Mother’s

      care.




      1
          Father’s parental rights were also terminated, but he does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018                   Page 2 of 15
[4]   On December 16, 2016, DCS filed a petition alleging that L.C. was a child in

      need of services (“CHINS”) under Indiana Code Section 31-34-1-1 and Indiana

      Code Section 31-34-1-10. DCS alleged:


              a.       That on or about December 11, 2016, mother tested
                       positive for opiates upon admission for a scheduled C-
                       section.


              b.       That the child experienced signs of withdrawal symptoms
                       including high pitch shrill cry and tremors.


              c.       That hospital personnel have been unable to fully asses[s]
                       the infant due to mother refusing to allow the child to be
                       taken into the nursery for any length of time and mother
                       has been breastfeeding while taking opiate medication,
                       therefore the infant is continuing to receive opiate
                       medication through breast milk.


              d.       That mother refused to follow medical advice with regard
                       to practicing safe sleep while in the hospital and slept with
                       the child in her bed.


              e.       That mother admits to taking a Percocet and Morphine
                       prior to going to the hospital for her C-section without a
                       valid prescription.


              f.       That father admits he was aware that mother took
                       Percocet and Morphine prior to going to the hospital and
                       admits knowing that she did not have a prescription.


              g.       That mother has another child removed from her care in
                       White County due to her mental health and substance


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018   Page 3 of 15
                       abuse and she is currently non-compliant with the services
                       through the White County case.


      Ex. Vol. IV p. 22. Mother and Father admitted the allegations, and the trial

      court adjudicated L.C. a CHINS.


[5]   The trial court entered a dispositional order, which ordered Mother, in part, to:

      (1) maintain suitable housing; (2) secure and maintain a legal and stable source

      of income; (3) avoid consumption of illegal controlled substances; (4) avoid

      consumption of alcohol; (5) obey the law; (6) complete a substance abuse

      assessment and follow all recommendations; (7) submit to random drug

      screens; and (8) attend all scheduled visitations with L.C.


[6]   Mother made minimal progress in complying with the dispositional order.

      Mother repeatedly tested positive for illegal substances, including

      methamphetamine, marijuana, morphine, and heroin. Mother failed to

      maintain consistent contact with DCS, failed to verify employment, and failed

      to find stable, suitable housing. Mother did not complete her parenting

      education, and her attendance at supervised visitations with L.C. was

      inconsistent.


[7]   On September 1, 2017, DCS filed a petition to terminate Mother’s and Father’s

      parental rights with respect to L.C. Subsequently, in October 2017, Mother was

      charged in Newton County with unlawful possession of a syringe, a Level 6

      felony. At the time of the termination hearing in February 2018, Mother was

      still incarcerated. After the hearing, the trial court entered findings of fact and


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018   Page 4 of 15
      conclusions of law terminating Mother’s and Father’s parental rights to L.C.

      Mother now appeals.


                                                   Analysis
[8]   Mother challenges the termination of her parental rights to L.C. The

      Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. In re

      I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care,

      custody, and control of his or her children is ‘perhaps the oldest of the

      fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

      120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the

      most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County

      Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize, of

      course, that parental interests are not absolute and must be subordinated to the

      child’s interests when determining the proper disposition of a petition to

      terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

      the parents are unable or unwilling to meet their parental responsibilities.’” Id.

      (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).


[9]   When reviewing the termination of parental rights, we do not reweigh the

      evidence or judge witness credibility. Id. We consider only the evidence and

      reasonable inferences that are most favorable to the judgment. Id. We must

      also give “due regard” to the trial court’s unique opportunity to judge the

      credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018   Page 5 of 15
       court entered findings of fact and conclusions of law in granting DCS’s petition

       to terminate Mother’s parental rights. When reviewing findings of fact and

       conclusions of law entered in a case involving a termination of parental rights,

       we apply a two-tiered standard of review. First, we determine whether the

       evidence supports the findings, and second, we determine whether the findings

       support the judgment. Id. We will set aside the trial court’s judgment only if it

       is clearly erroneous. Id. 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.


[10]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:


                        (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 18A-JT-859 | October 1, 2018     Page 6 of 15
                                  (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.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


                                              I. Changed Conditions

[11]   Mother challenges the trial court’s finding that a reasonable probability exists

       that the conditions resulting in L.C.’s removal or the reasons for placement

       outside Mother’s home will not be remedied. 2 In making this determination,

       the trial court must judge a parent’s fitness to care for his or her child at the time

       of the termination hearing and take into consideration evidence of changed

       conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

       The trial court, however, must also “evaluate the parent’s habitual patterns of

       conduct to determine the probability of future neglect or deprivation of the

       child.” Id.




       2
         Mother also argues the continuation of the parent-child relationship does not pose a threat to L.C.’s well-
       being. The trial court, however, did not make a finding that the continuation of the parent-child relationship
       poses a threat to L.C.’s well-being. Rather, the trial court found a reasonable probability that the conditions
       that resulted in L.C.’s removal and continued placement outside Mother’s home would not be remedied, and
       accordingly, we only address that issue.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018                     Page 7 of 15
[12]   The trial court found:


               There is a reasonable probability that the conditions that resulted
               in the child’s removal or the reasons for the placement outside
               the parent’s home will not be remedied in that:


               a.       That of the Forensic Fluids’ drug screens completed
                        mother failed nine of eighteen and father failed eighteen of
                        twenty-six.


               b.       That while mother did complete Intensive Outpatient
                        Drug Treatment she failed to do any follow-up. Mother
                        did not show up to ten scheduled individual therapy
                        appointments and was ultimately discharged from that
                        service in May of 2017.


                                                     *****


               d.       That mother and father were inconsistent with parenting
                        education class. Parents would meet once or twice in a
                        row and then have no contact with the service provider.
                        Neither mother or father completed the parent education.


               e.       That the caseworker for Family Focus assigned to mother
                        and father last saw mother in August of 2017 and father in
                        September of 2017 and tried weekly then biweekly to
                        contact both parents through January of 2018 with no
                        success.


               f.       Mother participated in only 46 visitations out of the 81
                        offered while father participated in only 43 visitations out
                        of the 81 offered. Mother was only fifty-seven percent
                        compliant with visitation and father was only fifty-three
                        percent compliant with visitation.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018   Page 8 of 15
        g.       That there was a concurrent White County DCS case with
                 mother and during that time mother continually failed
                 drug screens and had sporadic attendance with Wabash
                 Valley for therapy and drug treatment. That White
                 County DCS had to restart visitations through Help at
                 Home due to the non-compliance of mother.


        h.       That mother admitted to taking opiates during pregnancy
                 and intensive in-patient drug treatment was recommended.
                 Mother did complete in-patient drug treatment program
                 but not until December of 2017 through her criminal case
                 in Newton County, Indiana.


                                              *****


        j.       That of the 118 offered drug screens mother had twenty
                 negative, twenty-four no shows, and seventy-four positive
                 drug screens. Mother was less than twenty-five percent
                 compliant or negative on drug screens.


                                              *****


        l.       That both parents have an instability problem. Mother is
                 currently incarcerated and has no employment. Father has
                 had no employment until the last three weeks and the
                 home of parents as of August 10, 2017, was unfit with no
                 walls just studs with insulation and no water.


                                              *****


Appellant’s App. Vol. II pp. 37-38.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018   Page 9 of 15
[13]   Mother argues that DCS did not provide her with adequate means to maintain

       consistent contact and complete services. Mother contends that a “[l]ack of

       transportation and a phone” hampered her ability to access resources.

       Appellant’s Br. p. 11. She also argues that she has made progress in addressing

       her substance abuse issues by participating in two treatment programs. Finally,

       she asserts that she was incarcerated because financial difficulties did not allow

       her to post bond and that her parental rights should not be terminated because

       of her indigency.


[14]   The reasons for L.C.’s removal from Mother’s care and continued placement

       outside Mother’s home were Mother’s drug abuse and instability. Neither of

       these conditions have been remedied, and there is a reasonable probability that

       the conditions will not be remedied in the future.


[15]   Mother’s substance abuse problems have not been resolved. L.C. was born

       with marijuana and opiates in her meconium and exhibited withdrawal

       symptoms. During these proceedings, Mother repeatedly tested positive for

       illegal substances, including methamphetamine, marijuana, morphine, and

       heroin. Mother tested positive on seventy-four drug screens, missed twenty-

       four screens, and tested negative on twenty. She completed intensive outpatient

       therapy in May 2017 but did not return for her individual therapy sessions.

       Mother has been incarcerated since October 2017 after her arrest for possession

       of a syringe. Although DCS had recommended inpatient treatment for Mother,

       she did not begin the treatment until November or December of 2017 as part of

       her criminal case.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018   Page 10 of 15
[16]   Mother’s instability has similarly continued. During the CHINS proceedings,

       Mother was arrested for possession of a syringe. Mother also had a pending

       criminal case for “OWI, Possession of Marijuana, Reckless Driving, False

       Registration and Improper Passing” in Knox County, Indiana. Tr. Vol. I p. 60.

       At the time of the termination hearing, an active warrant for Mother’s arrest

       existed. Prior to Mother’s arrest for possession of a syringe, Mother secured

       housing; however, the housing was inappropriate for a child due to the exposed

       insulation and wiring and lack of running water. Mother never found

       employment. Mother’s visits with L.C. were inconsistent, and Mother did not

       complete the court-ordered parenting education. Moreover, Mother’s contact

       with DCS was inconsistent. When Mother did contact the case manager,

       Mother was “demanding and argumentative.” Id. Mother typically ended

       phone calls with her case manager by “hanging up” on the case manager. Id.


[17]   DCS tried to address Mother’s “[s]ubstance abuse treatment, instability,

       employment, housing and coping skills.” Id. at 53. The DCS case manager

       testified that there was no evidence to show that Mother’s situation will change

       based on Mother’s “noncompliance with services offered, the lack of stability,

       continued drug use, and the fact that [Mother] does not have her two older

       children in her care.” Id. at 62. Although Mother blames her lack of

       transportation, lack of phone service, and indigency for her termination of

       parental rights, her arguments are merely a request to reweigh the evidence,

       which we cannot do. Mother’s lack of progress in addressing her substance

       abuse and lack of stability are supported by clear and convincing evidence. The


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018   Page 11 of 15
       trial court’s finding that a reasonable probability exists that the conditions

       resulting in L.C.’s removal or the reasons for placement outside Mother’s home

       will not be remedied is not clearly erroneous.


                                                II. Best Interests

[18]   Mother also challenges the trial court’s finding that termination of her parental

       rights is in L.C.’s best interests. In determining what is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. D.D., 804

       N.E.2d at 267. In doing so, the trial court must subordinate the interests of the

       parents to those of the child involved. Id.


[19]   The trial court found:


               Termination is in the child’s best interests . . . in that: That the
               case was initiated due to drug use and mother tested positive for
               opiates. . . . Mother completed services for Intensive Outpatient
               but did no follow-up and is currently incarcerated for a drug
               offense. That the baby’s meconium tested positive for marijuana
               and opiates. There has been no progress made by either parent.
               That the child is placed in a foster family and that foster family is
               the only family she had known.


       Appellant’s App. Vol. II p. 38.


[20]   Mother argues “the evidence, at best, shows that [she] may have tried, but

       simply did not try quite hard enough” and that “is not the standard and it does

       not support the drastic action of terminating parental rights . . . .” Appellant’s

       Br. p. 12. Mother’s argument is, again, a request that we reweigh the evidence,

       which we cannot do. DCS presented evidence that Mother made little to no

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018   Page 12 of 15
       progress toward addressing her substance abuse issues or her lack of stability.

       The DCS case manager testified that termination of Mother’s parental rights

       was in L.C.’s best interest because L.C. “needs a home that can provide

       structure and stability and a substance-free environment that her parents are

       unable to [provide].” Tr. Vol. I p. 63. L.C.’s foster family is “the only family

       she actually knows and she’s been with them since birth.” Id. The totality of

       the evidence supports the trial court’s decision that termination of Mother’s

       parental rights is in L.C.’s best interest. DCS proved by clear and convincing

       evidence that termination is in L.C.’s best interest. Accordingly, the trial

       court’s finding on this issue is not clearly erroneous.3


                                              III. Satisfactory Plan

[21]   Finally, Mother also challenges the trial court’s finding that there is a

       satisfactory plan for the care and treatment of L.C. Indiana courts have 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) (quoting Lang v. Starke

       Cnty. Office of Family and Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007),

       trans. denied), trans. denied.




       3
        DCS argues that L.C. “had been removed and placed outside Mother’s home since December 14, 2016,
       which was a little over two years from the February 28, 2018 termination factfinding.” Appellee’s Br. p. 21.
       We note that L.C. was removed from Mother’s care for a little over one year, not two years.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018                  Page 13 of 15
[22]   The trial court found: “The Department of Child Services had a satisfactory

       plan for the care and treatment of the child, which is: adoption.” Appellant’s

       App. Vol. II pp. 38-39. Mother does not dispute that the potential adoptive

       home is suitable for L.C.; rather, she argues that “removal from a parent’s

       custody and care should take place only when the environment with the natural

       parent is ‘wholly inadequate for their very survival.’” Appellant’s Br. p. 12

       (quoting In re Matter of Miedl, 425 N.E.2d 137, 141 (Ind. 1981)). This argument

       is more properly directed to other factors, such as whether termination of

       parental rights is in L.C.’s best interest. Moreover, our supreme court has held:

       “‘Clear and convincing evidence need not reveal that the continued custody of

       the parent [ ] is wholly inadequate for the child’s very survival.’” V.A., 51

       N.E.3d at 1145-46 (quoting Bester, 839 N.E.2d at 148). Mother’s argument that

       we should consider whether her custody of L.C. would be wholly inadequate

       for L.C.’s very survival is misplaced given our supreme court’s rejection of that

       standard.


[23]   DCS is only required to offer a general sense of the plan for L.C. after

       termination of Mother’s parental rights. The DCS family case manager testified

       that the plan for L.C. was adoption and that a prospective home had been

       identified; adoption is a satisfactory plan. See, e.g., Lang, 861 N.E.2d at 375

       (holding that adoption and independent living were satisfactory plans). The

       trial court’s finding that DCS had a satisfactory plan is not clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018   Page 14 of 15
                                                  Conclusion
[24]   The evidence is sufficient to support the termination of Mother’s parental rights

       to L.C. We affirm.


[25]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-859 | October 1, 2018   Page 15 of 15
