MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                      Feb 20 2019, 9:30 am
regarded as precedent or cited before any                                      CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jessica L. Hoover                                        Curtis T. Hill, Jr.
Law Office of Jessica L. Hoover, LLC                     Attorney General of Indiana
Remington, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         February 20, 2019
of Parental Rights of:                                   Court of Appeals Case No.
                                                         18A-JT-1878
I.M. (Minor Child)
                                                         Appeal from the Jasper Circuit
and                                                      Court
B.S. (Mother),                                           The Honorable John D. Potter,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause No.
        v.                                               37C01-1805-JT-104

The Indiana Department of
Child Services (DCS),
Appellee-Petitioner.



Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019                  Page 1 of 15
                                   Case Summary and Issue
[1]   B.S. (“Mother”) appeals the juvenile court’s termination of her parental rights

      to I.M. (“Child”), raising the sole issue of whether the trial court erred in

      terminating her parental rights. Concluding the juvenile court did not err, we

      affirm.



                              Facts and Procedural History
[2]   Child was born to Mother and F.M. (“Father”) on December 9, 2016.1 On

      August 23, 2017, the Indiana Department of Child Services (“DCS”) received a

      report that Mother was homeless, Child’s sibling A.M.2 had not been enrolled

      in school, and Mother did not have proper food for then nine-month-old Child.

      DCS received a second report on September 1 alleging that Mother physically

      abused sibling A.M., slept excessively, suffered from depression, left Child and

      sibling A.M. unattended, and when the Children were left in the care of

      maternal grandmother, grandmother was neglectful and engaged in drug use.

      Mother tested positive for THC on September 6.




      1
        Father’s parental rights were also terminated. Father, however, does not participate in this appeal and we
      therefore limit our recitation of facts to those relevant to Mother.
      2
        A.M., who was born May 5, 2010, was named in the underlying CHINS case but not alleged to be a
      CHINS. See Appellant’s Appendix, Volume II at 7. She was eight years old at the time of the termination
      hearing and is reportedly autistic. However, A.M. is not mentioned in the termination decree provided for
      this appeal, nor by Mother in her brief, except to refer to her as “minor child’s sibling[.]” Brief of Appellant
      at 7.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019                    Page 2 of 15
[3]   An informal adjustment was opened on September 21 wherein Mother agreed

      to work with DCS to complete services so as to “alleviate the reasons for

      involvement.” Transcript at 45. Mother was arrested on October 9 following a

      traffic stop where she was found in possession of drug paraphernalia. While

      incarcerated, Mother informed DCS that Child was with Father but Child was

      eventually located with her aunt. The Children were removed on October 10

      and DCS filed a child in need of services (“CHINS”) petition on October 11,

      alleging:


              a. That the family entered into an Informal Adjustment with the
              DCS on or about September 21, 2017, and since that date
              [M]other tested positive for marijuana.


              b. That on or about October 10, 2017, Family Case Manager
              Holly Ammann (“FCM Ammann”) learned that [M]other was
              incarcerated at the Newton County Jail. FCM Ammann went
              and spoke with [M]other at the Newton County Jail and
              [M]other informed her that she was pulled over for speeding and
              that she was arrested for possession of paraphernalia along with
              her mother and uncle.


              c. That when FCM Ammann asked [M]other where the [C]hild
              was [M]other was dishonest stating that the [C]hild was being
              watched by her [F]ather, DCS was eventually able to locate the
              [C]hild with [M]other’s aunt.


              d. That the [C]hild’s sibling [A.M.] has had five unexcused
              absences from school along with her being tardy eight times since
              school started on August 28, 2017.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 3 of 15
              e. That several attempts have been made to contact [F]ather but
              they have been unsuccessful. FCM Ammann has been in contact
              with his family and they indicated that he is currently homeless
              and rarely holds employment.


      Appellant’s App., Vol. II at 8.


[4]   The juvenile court conducted an initial detention hearing on October 11

      wherein Mother admitted to the allegations in the CHINS petition and the

      juvenile court adjudicated Child to be a CHINS. See id. at 11. The juvenile

      court determined that the removal of Child was authorized and necessary to

      protect Child. Following a dispositional hearing on November 6, the juvenile

      court imposed twenty-nine conditions upon Mother with the goal of

      reunification. See id. at 14-16.


[5]   The juvenile court conducted a review hearing on April 2, 2018. Following the

      hearing, the juvenile court found, in relevant part:


              [Father] and [Mother] have not complied with the [C]hild’s case
              plan. [M]other has been non-compliant with service providers
              and does not maintain contact with DCS. . . .


              [Father] and [Mother] have not enhanced their ability to fulfill
              their parental obligations. [M]other has been non-compliant with
              services. . . .


              [Father] and [Mother] have not visited the [C]hild. [M]other has
              only participated in 9.25 hours of the offered 55 hours of
              visitation with the [C]hild.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 4 of 15
              [Father] and [Mother] have not cooperated with DCS.


      Id. at 20.


[6]   A permanency hearing was conducted on May 14. The juvenile court found

      that Mother had not complied with Child’s case plan, failed to submit to regular

      random drug screens or participate in ordered services, and remained

      unemployed without housing for the children. See id. at 22. The juvenile court

      changed Child’s permanency plan “to be placed for adoption.” Id. at 23.


[7]   DCS filed its petition for the involuntary termination of the parent-child

      relationship on May 17, 2018. The juvenile court held a factfinding hearing on

      July 11 and, after hearing the evidence, terminated Mother’s parental rights

      through written findings of fact and conclusions of law issued on July 13. The

      juvenile court found, in relevant part:

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


              a. Mother continued to test positive for illegal drugs throughout
              the CHINS case including THC and cocaine. Mother also tested
              positive for THC while currently pregnant.


              ***


              c. Mother only met with her homemaker services worker once
              and had several no-call, no-shows to appointments. Mother still
              does not have appropriate housing and is still not employed.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019    Page 5 of 15
        d. Mother’s first therapist was never able to start individual
        therapy over a two month period due to difficulty contacting
        [M]other despite calling, texting, and making visits to the home.


        ***


        g. Mother was inconsistent with visitation, [M]other only
        attended five out of thirty-nine visitations, the last being in
        January of 2018.


        h. Mother did not attend any counseling sessions after her initial
        intake and she failed to attend any intensive outpatient treatment
        sessions.


        ***


        j. DCS tried to offer services through an Informal Adjustment but
        [M]other was arrested in Newton County for drug-related
        charges in October 2017.


        k. That [M]other reported several different addresses in Illinois
        and Northwest Indiana during the CHINS case and was not in
        contact with DCS. DCS attempted to mail [M]other contact
        information in 2018 but was not successful.


        ***


        m. Mother did not contact DCS from December 21, 2017, until
        March 18, 2018, except for at court appearances.


        n. In March 2018 [M]other informed DCS by text that she was
        homeless, and paperwork could be sent to an address in East
        Chicago.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 6 of 15
        o. Mother admitted she continued to use drugs because her
        children were taken away and it was hard.


        p. Mother never asked DCS to move services closer to her when
        she lived in East Chicago.


        q. Mother [sic] relationship with the man she was living with
        after removal involved daily fighting where [M]other would leave
        and then return.


        There is a reasonable probability that continuation of the parent-child
        relationship poses a threat to the well-being of the [C]hild in that:


        a. Mother only met with her homemaker service provider to find
        housing and employment once and then no-called or no-showed
        the remainder of the appointments.


        b. Mother’s first therapist had great difficulty contacting [M]other
        despite numerous calls, texts, and visits to the home over a two
        month [sic] period and [M]other never began individual therapy.


        ***


        e. That [M]other was inconsistent with visitation and only
        attended five out of thirty-nine visitations, the last of which was
        in January of 2018.


        f. Mother never attended individual therapy or intensive
        outpatient drug treatment after the initial intake appointment.


        ***




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 7 of 15
        h. Mother admitted she continued to use drugs because her
        children were taken away and it was hard.


        ***


        Termination is in the [C]hild’s best interests of the [C]hild [sic] in that:


        ***


        d. Mother continues to maintain a lifestyle that necessitated the
        informal adjustment and then removal in 2017.


        e. Mother who is currently pregnant, still continues to use illegal
        drugs.


        f. Mother did not participate in any of the mental health services
        that were provided.


        g. Mother does not have a stable residence and has lived with
        various people with no home of her own.


        h. Mother’s rate of attendance to as to [sic] visits is less than
        twenty percent.


        i. Mother is not ready to address her problems as she testified it
        was all the other people around her in her life causing the
        problems.


Id. at 29-31 (emphasis added). Mother now appeals.



                           Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019      Page 8 of 15
                                       I. Standard of Review
[8]    When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge the credibility of witnesses. In re D.D., 804 N.E.2d 258, 265

       (Ind. Ct. App. 2004), trans. denied. Rather, we consider the evidence, and

       reasonable inferences therefrom, most favorable to the judgment, id., and we

       will only set aside the court’s judgment terminating a parent-child relationship

       when it is clearly erroneous, In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

       1999), trans. denied, cert. denied, 534 U.S. 1161 (2002).


[9]    As required by Indiana Code section 31-35-2-8(c), the juvenile court entered

       findings of fact and conclusions thereon when terminating Mother’s parental

       rights. Accordingly, we apply a two-tiered standard of review. Bester v. Lake Co.

       OFC, 839 N.E.2d 143, 147 (Ind. 2005). We must first determine whether the

       evidence supports the findings; then we determine whether the findings support

       the judgment. Id. Findings will only be set aside if they are clearly erroneous

       and findings are clearly erroneous only “when the record contains no facts to

       support them either directly or by inference.” Yanoff v. Muncy, 688 N.E.2d

       1259, 1262 (Ind. 1997).


                                       II. Termination Order
[10]   Mother challenges the termination of her parental rights to Child. A parent’s

       interest in the care, custody, and control of his or her child is “perhaps the

       oldest of the fundamental liberty interests[,]” Bester, 839 N.E.2d at 147, and

       these rights are protected by the Fourteenth Amendment to the United States

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 9 of 15
       Constitution, In re D.D., 804 N.E.2d at 264. Although these rights are

       constitutionally protected, they are not without limitation and the law provides

       for the termination of the parent-child relationship when parents are unable or

       unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144,

       149 (Ind. Ct. App. 2008).


[11]   To terminate Mother’s parental rights, Indiana Code section 31-35-2-4(b)(2)

       requires DCS prove, in relevant 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.


                        (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 prove the foregoing elements by clear and convincing evidence. Ind.

       Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). However,

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 10 of 15
       because subsection (b)(2)(B) is written in the disjunctive the juvenile court need

       only find one of the three elements by clear and convincing evidence. See Castro

       v. State Office of Family & Children, 842 N.E.2d 367, 373 (Ind. Ct. App. 2006)

       (citation omitted), trans. denied.


[12]   Mother challenges the juvenile court’s conclusions that the conditions under

       which Child was removed would not be remedied, the continuation of the

       parent-child relationship posed a risk to Child, and termination was in the best

       interests of Child. Before proceeding to the merits of Mother’s argument,

       however, we note that Mother does not specifically challenge any of the

       findings of fact and therefore we accept the juvenile court’s findings as true. See

       Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).


                                     A. Remedy of Conditions
[13]   First, Mother argues DCS failed to prove by clear and convincing evidence that

       the conditions resulting in Child’s removal will not be remedied. In K.T.K. v.

       Ind. Dep’t of Child Servs., our supreme court explained:


               We engage in a two-step analysis to determine whether the
               conditions that led to the [Child’s] placement outside the home
               will not be remedied. First, we must ascertain what conditions
               led to [the] placement and retention in foster care. Second, we
               determine whether there is a reasonable probability that those
               conditions will not be remedied. In making these decisions, 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.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 11 of 15
       989 N.E.2d 1225, 1231 (Ind. 2013) (quotations and citations omitted). Habitual

       conduct may include criminal history, drug and alcohol abuse, history of

       neglect, failure to provide support, and lack of adequate housing and

       employment, but the services offered to the parent and the parent’s response to

       those services can also be evidence demonstrating that conditions will be

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

       App. 2013), trans. denied.


[14]   Since Mother has failed to specifically challenge any of the juvenile court’s

       findings, we need only consider whether the findings support the juvenile

       court’s conclusion. See Bester, 839 N.E.2d at 147. Here, Mother wholly failed

       to demonstrate that she was any closer to providing Child a safe, stable home

       than she was at the inception of the CHINS case. The record is littered with

       evidence of Mother’s failure to engage with DCS, her refusal to participate in

       services, and her inability to combat her substance abuse issues. Indeed, FCM

       Ammann testified Mother made no progress regarding her substance abuse. See

       Tr. at 47. The juvenile court made extensive findings on this issue and we

       conclude those findings support its conclusion that the conditions resulting in

       Child’s removal will not be remedied. See, e.g., In re E.M., 4 N.E.3d 636, 644

       (Ind. 2014) (findings regarding father’s continued non-compliance with services

       supported juvenile court’s conclusion the conditions under which children were

       removed from father’s care would not be remedied).


[15]   To the extent Mother argues that she recently attempted to engage in services,

       the juvenile court was well within its discretion to “disregard the efforts Mother

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 12 of 15
       made only shortly before termination and to weigh more heavily Mother’s

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

       And, to the extent Mother cites her own testimony as evidence that her failure

       to comply with services was outside of her control, we view her argument as

       nothing more than an invitation to reweigh the evidence, which we will not do.

       See In re D.D., 804 N.E.2d at 265.


                                       B. Well-Being of Child
[16]   Next, Mother contends DCS failed to present clear and convincing evidence

       that the continuation of the parent-child relationship poses a threat to Child’s

       well-being. Having already concluded the juvenile court did not err in

       concluding that the conditions that led to Child’s removal would not be

       remedied, we need not address this argument. See Castro, 842 N.E.2d at 373

       (noting that Indiana Code 31-35-2-4(b)(2)(B) is written in the disjunctive and

       the juvenile court need only find one of the three elements by clear and

       convincing evidence). However, given the juvenile court’s unchallenged

       findings in this regard, Mother’s continued substance abuse issues, and

       Mother’s lack of effort or success in overcoming those substance abuse issues,

       we nevertheless conclude the juvenile court did not err in concluding there was

       a reasonable probability that the continuation of the parent-child relationship

       poses a threat to Child’s well-being. See In re D.L., 814 N.E.2d 1022, 1029 (Ind.

       Ct. App. 2004) (“The inevitable conclusion is that when [mother] abuses drugs,

       she endangers her children in a variety of ways.”), trans denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 13 of 15
                                     C. Best Interests of Child
[17]   Finally, Mother argues the juvenile court erred in concluding that the

       termination of the parent-child relationship was in the best interests of Child.


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

       required “to look beyond the factors identified by [DCS] and to consider the

       totality of the evidence.” In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

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

       the children. In re A.K., 755 N.E.2d 1090, 1097 (Ind. Ct. App. 2001). The court

       need not wait until a child is irreversibly harmed before terminating the parent-

       child relationship. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d

       185, 199 (Ind. Ct. App. 2003). Moreover, the testimony of service providers

       may support a finding that termination is in the child’s best interests. Id. at 203.


[19]   Once again, Mother has failed to challenge any of the juvenile court’s findings

       of fact on this issue and thus we need only determine whether those findings

       support the juvenile court’s conclusion. We conclude that they do. In addition

       to Mother’s substance abuse issues that necessitated DCS involvement and her

       complete lack of progress since then, FCM Ammann testified that terminating

       Mother’s parental rights would serve the best interests of Child. See Tr. at 53.

       Therefore, we conclude Mother has failed to demonstrate the juvenile court’s

       conclusion regarding the best interests of Child was clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 14 of 15
                                               Conclusion
[20]   For the reasons set forth above, we conclude the juvenile court’s decision to

       terminate Mother’s parental rights was not clearly erroneous. We affirm

       accordingly.


[21]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1878 | February 20, 2019   Page 15 of 15
