MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Apr 08 2020, 11:59 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Leanna Weissmann                                          Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                     Attorney General
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              April 8, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
K.R.L.F., N.F., Kev.F., Ke.F.,                            19A-JT-2165
and Kr.F. (Minor Children) and                            Appeal from the
A.F. (Mother),                                            Parke Circuit Court
                                                          The Honorable
                                                          Samuel Swaim, Judge
A.F. (Mother),                                            Trial Court Cause Nos.
Appellant-Respondent,                                     61C01-1904-JT-53
                                                          61C01-1904-JT-54
        v.                                                61C01-1904-JT-55
                                                          61C01-1904-JT-56
                                                          61C01-1904-JT-57
Indiana Department of Child
Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020               Page 1 of 13
      Vaidik, Judge.



                                             Case Summary
[1]   A.F. (“Mother”) appeals the termination of her parental rights to her five

      children. We affirm.



                              Facts and Procedural History
[2]   The facts that follow are taken primarily from the trial court’s findings of fact,

      none of which Mother challenges on appeal.1 Mother and K.F. (“Father”)

      (collectively, “Parents”) are the parents of K.R.L.F., born in 2002, N.F., born

      in 2014, Kev.F., born in 2015, and twins Ke.F. and Kr.F., born in 2017

      (collectively, “Children”).2

[3]   On May 3, 2017, the Department of Child Services (DCS) received a report

      alleging that Ke.F. and Kr.F.’s meconium had tested positive for THC at birth.

      The next day, DCS interviewed Parents at their house. Mother was tested for

      drugs, and the results were later returned as positive for THC. DCS also saw

      that Parents’ house was cluttered and dirty. DCS opened an Informal

      Adjustment (IA) to provide the family services, and Children remained with




      1
       Because Mother does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v.
      Arko, 592 N.E.2d 686, 687 (Ind. 1992).
      2
       Father’s parental rights were also terminated, but he does not participate in this appeal; therefore, we limit
      our narrative to the facts relevant to Mother.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020                       Page 2 of 13
      Parents. Parents were provided a home-based case worker to help them clean

      and repair their house, but its conditions continued to deteriorate. There were

      “animal feces smashed into the carpet throughout the home.” Tr. p. 31.

      Family Case Manager (FCM) Supervisor Amanda Holt said that the “dogs had

      free reign of the home and left feces all over the place” and that the family’s

      “sleeping arrangements were difficult to view because they were just wherever

      the piles were not.” Id. During the IA, Mother continued to test positive for

      THC.

[4]   In October 2017, DCS filed petitions alleging Children to be Children in Need

      of Services (CHINS), claiming that Parents were not in compliance with drug

      screens and that the conditions of the family’s house had worsened. Later that

      day, the trial court held an initial hearing and allowed Children to remain with

      Parents under an “in-home” CHINS.

[5]   In December 2017, Mother twice tested positive for methamphetamine,

      amphetamine, and THC. By the end of December, Children were removed

      from Parents’ care due to “poor home conditions,” “ongoing concerns for drug

      use,” and a “lack of progress through the in-home CHINS.” Id. at 32. A

      detention hearing was held on January 3, 2018, and the trial court approved the

      removal of Children from Parents’ care. The next day, one of Mother’s drug

      screens was returned as positive for methamphetamine, amphetamine, and

      THC. See Ex. H. On January 9, the trial court held a CHINS fact-finding

      hearing, and Mother admitted that Children were CHINS. Later that month,

      following a dispositional hearing, the trial court ordered Parents to participate

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020   Page 3 of 13
      in services, including drug and alcohol treatment, random drug screens, home-

      based case management, and supervised visitation. See Tr. p. 38. The trial

      court also ordered Mother to obtain and maintain stable and appropriate

      housing and employment; not use, consume, or possess illegal substances;

      complete a family-preservation program; complete parenting and substance-

      abuse assessments; and follow all recommendations that came from such

      assessments. See Ex. C.


[6]   For the next year, Mother was somewhat compliant with services. She

      attended almost all supervised visitation with Children, but she “cusse[d] at the

      children throughout the visits” and refused contact with Children on weekends

      because she claimed that the weekend was “Mother and Father’s time

      together.” Ex. C. She also completed her substance-abuse assessment and was

      referred to individual therapy, motivational interviewing, and the matrix

      program. Mother completed her psychological evaluation and was diagnosed

      with bipolar disorder, cannabis-use disorder, and an unspecified anxiety

      disorder. It was recommended that before engaging in therapy to address her

      bipolar disorder, Mother work on reducing her chronic use of marijuana. See

      Tr. p. 132. Regarding the family’s house, Mother refused to engage in home-

      based case management, and the house continued to deteriorate. For example,

      DCS received a report that there were “dead rats in the kitchen sink with live

      rats eating the dead rats.” Id. at 46. DCS was also concerned that there was

      possibly mold in the house, there were “[d]og feces throughout the home due to

      an estimated twelve dogs in the home,” and the house did not have working


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020   Page 4 of 13
      utilities. Id. At some point, Parents moved to a house in Clinton, but they

      struggled to keep the new house safe and clean and, eventually, refused to allow

      DCS inside the home. See Ex. C. As for her participation in random drug

      screens, in October 2018, Mother submitted to eleven out of twenty-one

      requested drug screens. See id. Nine of those eleven drug screens were positive

      for THC. See id.


[7]   In January 2019, the trial court suspended Mother’s visits until she attended

      one self-help session per week, complied with drug screens, and attended all

      sessions for motivational interviewing (a therapy that helps individuals

      recognize their problems and build motivation to find solutions) and related

      drug and alcohol assistance programs. See id. In February 2019, Mother was

      arrested for stabbing her brother.3 See Tr. p. 65. Two weeks later, Mother and

      Father got into an altercation. Father was suicidal at the time, and police were

      called to Parents’ house. See id. at 65-66. In March, citing Mother’s lack of

      progress and noncompliance with services, the trial court approved DCS’s

      request to change Children’s permanency plan to termination of parental rights

      and adoption.

[8]   In April, DCS filed petitions to terminate Mother’s parental rights to Children.

      Later that month, DCS went to Parents’ house along with a new home-based

      case manager to try to get Mother reengaged in services. However, Mother was




      3
          According to DCS, no charges were filed for this incident. See Tr. p. 78.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020   Page 5 of 13
      “extremely aggressive . . . to the point that [the DCS worker] and the [home-

      based] case manager ultimately just got back in [their] car and left.” Id. at 66.

      In May, Mother submitted to only three out of the twenty drug screens

      requested by DCS. Of those three, one was later returned as positive for

      methamphetamine, amphetamine, and THC. See Ex. C. On June 17, Mother

      was charged with Class A misdemeanor domestic battery against Father. See

      83C01-1906-CM-110. Allegedly, Father was trying to leave the house when

      Mother pulled his beard and hair and threw glass at him, cutting his hand. See

      Ex. E. Both Mother and Father were arrested and ordered to have no contact

      with each other.4 See id.


[9]   Less than two weeks later, the termination fact-finding hearing was held.

      Father did not appear, and although Mother did appear, she was almost two

      hours late to the hearing. See Appellant’s App. Vol. II p. 92. FCM Tamyra

      Robinson testified that she had been the family’s case manager since October

      2018. FCM Robinson said that Mother told her that she could not engage in

      home-based case management because she was “too tired to engage in the

      service because of her visitations with [Children].” Tr. p. 45. FCM Robinson

      stated that she did not believe that Mother had “any kind of meaningful

      relationship with [Children].” Id. at 73. FCM Robinson testified that DCS’s

      plan for Children is adoption and that all five children were in pre-adoptive




      4
          In September 2019, Mother and the State entered into a pretrial diversion agreement.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020              Page 6 of 13
       foster homes. Id. at 74. FCM Robinson also stated that she did not believe that

       the conditions that caused the removal of Children would ever be remedied. Id.

       at 82. Regarding the allegations of domestic violence, FCM Robinson said that

       in November 2018, Mother told her that Father “had attempted to kill her three

       times, one with an ax, one with a BB gun and one with a machete.” Id. at 61.


[10]   Sarah Szerlong, a psychologist, testified that she conducted Mother’s

       psychological evaluation and determined that Mother was suffering from

       bipolar disorder, cannabis-use disorder, and an unspecified anxiety disorder. Id.

       at 131. However, Szerlong said that Mother was “cognitively able to make

       positive choices for herself and her children” and that there was no reason to

       believe that Mother was not able to improve her parenting skills. Id. at 134.

       Donna Coy, a toxicologist with Forensic Fluids, testified that her lab processed

       forty drug screens for Mother and of those forty, twenty-four were positive for a

       variety of substances, including methamphetamine, THC, buprenorphine, and

       hydrocodone. Id. at 21. John Martin, a toxicologist with Redwood

       Toxicology, testified that his lab processed five drug screens for Mother and of

       those five, three were positive for THC. Id. at 107. Gretchen Peterson testified

       that she supervised visits for Mother and Children and that she was never able

       to resolve Mother’s issue of “cuss[ing]” at Children during visits. Id. at 154-55.

       Jennifer Roach, a mental-health counselor, testified that she provided therapy

       to K.R.L.F., N.F., and Kev.F., who were all diagnosed with an “other specified

       trauma and stress related disorder.” Id. at 114. Regarding Parents’ house,

       Counselor Roach said that K.R.L.F. “has talked about there being animal feces

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020   Page 7 of 13
       on the floor, animals dying, feeling hungry for food and having to crawl on

       countertops and in cabinets to find something to eat.” Id. at 118. Counselor

       Roach said that K.R.L.F., N.F., and Kev.F. “need to remain outside of the

       home” because “they could suffer mental health related setbacks if they’re

       placed in [Parents’ home].” Id. at 119-20.


[11]   Court Appointed Special Advocate (CASA) Director Audrey Hayman testified

       that she was appointed as Children’s CASA in October 2017. CASA Hayman

       stated that she believes termination is in Children’s best interests and that the

       conditions resulting in Children’s removal had not been remedied. See id. at

       144. CASA Hayman stated that she did not observe any changes in Mother’s

       behavior throughout this case. See id. at 147. Mother testified that she recently

       “went to jail on domestic battery because [her] husband was beating . . . the

       crap out of [her] and [she] called the police.” Id. at 91. Mother said that she

       planned on divorcing Father but had not yet filed. Id. Mother asserted that

       Father “tried sabotaging everything. He done everything in his power to make

       sure [she] lost [Children] and [she] wouldn’t get them back.” Id. at 174.

       Mother claimed that she could “do it with [Father] gone.” Id. However,

       Mother also admitted that she was addicted to marijuana and not compliant

       with services. See id. at 95, 176. In August 2019, the trial court issued its order

       terminating Mother’s parental rights.

[12]   Mother now appeals.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020   Page 8 of 13
                                  Discussion and Decision
[13]   When reviewing the termination of parental rights, we do not reweigh the

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

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

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

       entered findings of fact and conclusions of law, we will not set aside the trial

       court’s findings or judgment unless clearly erroneous. Id. To determine

       whether a judgment terminating parental rights is clearly erroneous, we review

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

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


[14]   A petition to terminate parental rights must allege, among other things:

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


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


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


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


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


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020   Page 9 of 13
               (D) that there is a satisfactory plan for the care and treatment of
               the child.


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

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

       finds that the allegations in a petition are true, the court shall terminate the

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

[15]   Mother first challenges the trial court’s conclusion that there is a reasonable

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

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

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

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

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

       court determines whether there is a reasonable probability that those conditions

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

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

       future neglect or deprivation.” Id. The trial court has discretion to weigh a

       parent’s prior history more heavily than efforts made only shortly before

       termination, and the court may find that a parent’s past behavior is the best

       predictor of her future behavior. In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct.

       App. 2016).

[16]   Mother specifically argues that “she was the victim” of domestic violence and

       “had left Father and would be filing for divorce,” and therefore that she can

       now remedy the conditions that resulted in Children’s removal. Appellant’s Br.
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020   Page 10 of 13
       p. 18. First, by no means is it clear from the record that Mother was the victim

       of domestic violence. There is evidence showing that Father and Mother were

       both arrested in June 2019 for battering each other and that during the incident,

       Mother threw glass at Father and cut his hand. See Ex. E. But even if we

       assume that Mother was the victim of domestic violence and that she followed

       through on her plan to divorce Father, there is plenty of other evidence showing

       that she is no closer to providing Children a safe, stable home than she was at

       the beginning of the CHINS case in October 2017. The evidence shows that

       Mother did not participate in cleaning the home and did not provide for

       Children’s needs. Therefore, the trial court found that Parents “failed to

       demonstrate that they could clean their residence to ensure the safety of the

       Children.” Appellant’s App. Vol. II p. 110. Mother herself admitted that she

       did not comply with services. Tr. p. 176. Furthermore, the evidence shows that

       Mother used THC and methamphetamine a month before the termination

       hearing and that she consistently tested positive for THC throughout the

       CHINS case. The trial court found that “Mother continued abusing THC on a

       regular basis.” Appellant’s App. Vol. II p. 113. Indeed, Mother even admitted

       that she is addicted to marijuana. See Tr. p. 95. Accordingly, the trial court did

       not err when it concluded that there is a reasonable probability that the

       conditions resulting in Children’s removal and continued placement outside the

       home will not be remedied.


[17]   Mother also challenges the trial court’s conclusion that termination is in

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


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020   Page 11 of 13
       trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d

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

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

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

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

       recommendation by both the case manager and child advocate to terminate

       parental rights, in addition to evidence that the conditions resulting in removal

       will not be remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id. at 1158-59.


[18]   Here, FCM Robinson and CASA Hayman both testified that terminating

       Mother’s parental rights is in Children’s best interests. See Tr. pp. 74, 144. The

       trial court also found that Mother “demonstrated repeatedly that [she] did not

       have a significant or meaningful relationship with the Children.” Appellant’s

       App. Vol. II p. 115. The evidence shows that Mother “cusse[d] at the children

       throughout the visits” and refused contact with Children on the weekends

       because she claimed that the weekend was “Mother and Father’s time

       together.” See Ex. C. Furthermore, Counselor Roach testified that the children

       she worked with—K.R.L.F., N.F., and Kev.F.—needed to remain outside

       Parents’ home to ensure that their mental-health needs were met. Tr. p. 119.

       Indeed, Counselor Roach said that K.R.L.F. told her that when she lived with

       Mother, she remembered “feeling hungry for food and having to crawl on

       countertops and in cabinets to find something to eat.” Id. at 118. For all of




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020   Page 12 of 13
       these reasons, the trial court did not err when it found that termination is in

       Children’s best interests.

[19]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2165 | April 8, 2020   Page 13 of 13
