MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jun 13 2018, 9:35 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
Luisa M. White                                            Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 13, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of P.P., K.P., and B.P., Minor                            79A02-1711-JT-2834
Children,                                                 Appeal from the Tippecanoe
J.J., Mother,                                             Superior Court
                                                          The Honorable Faith A. Graham,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause Nos.
                                                          79D03-1704-JT-38
                                                          79D03-1704-JT-39
The Indiana Department of
                                                          79D03-1704-JT-40
Child Services,
Appellee-Petitioner.



Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018            Page 1 of 27
[1]   J.J. (“Mother”) appeals the involuntary termination of her parental rights with

      respect to P.P., K.P., and B.P. (the “Children”).1 Mother raises three issues

      which we consolidate and restate as whether the trial court erred in terminating

      her parental rights. We affirm.


                                         Facts and Procedural History

[2]   On November 18, 2015, the Indiana Department of Child Services (“DCS”)

      filed a verified petition alleging K.P., born on June 14, 2012, P.P., born on

      January 26, 2014, and B.P., born on March 5, 2015, were children in need of

      services (“CHINS”), that Mother and the Children’s father (“Father”) have a

      history of substance abuse and regularly use marijuana while caring for them,

      and that DCS removed K.P. and P.P. from the care of Mother and Father in

      May 2014 after K.P. tested positive for THC and Mother tested positive for

      methamphetamine. On December 14, 2015, the trial court held a fact-finding

      hearing on the petition, and on December 23, 2015, the court adjudicated the

      Children to be CHINS.


[3]   On February 3, 2016, the court entered its CHINS disposition order and a

      parental participation decree. The disposition order allowed the Children to

      remain in the care of Mother and Father. The parental participation decree

      ordered Mother to participate in “intensive case management with HGCF and

      follow recommendations,” “a substance abuse assessment and follow



      1
        The court also terminated the parental rights of the Children’s father as to the Children, and the Children’s
      father does not appeal the termination.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018                Page 2 of 27
      recommendations,” and “in drug screens as requested by DCS, [the Court

      Appointed Special Advocate (“CASA”)] and service providers,” and to “[n]ot

      consume or possess alcohol” and “[n]ot consume or possess, nor allow anyone

      else in your home to consume or possess, any legend drug or controlled

      substance without a prescription.” DCS Exhibit 5 at 11-12.


[4]   On March 1, 2016, the court entered an Order on Modification of Dispositional

      Decree, which found that Mother and Father did not follow the court’s orders

      and continued to consume and possess alcohol. The order required Mother and

      Father to “remove all products containing alcohol from the home today’s date

      [sic]” and stated that it “orders immediate removal of the children” should they

      “fail to follow the Court’s Orders, continue to possess or consume products

      containing alcohol, fail to allow providers, DCS and CASA access to the home

      and to the children or allow the children to be in the care of unapproved

      persons.” Id. at 16-17. On March 29, 2016, on motion of DCS the court issued

      an order for rule to show cause which found Mother in contempt and ordered

      her to serve a sentence, suspended upon compliance with court orders.2




      2
        Specifically, in its March 29, 2016 order for rule to show cause, the court found Mother to be in contempt
      for failure to allow CASA into her home on one date and consuming alcohol on four other dates. The court
      then ordered: “[Mother] to purge herself of said contempt by serving a sentence of incarceration; suspended
      upon her 100% compliance with this Court’s orders.” DCS Exhibit 5 at 18. We have observed that a jail
      sentence for civil contempt must be coercive or remedial rather than punitive in nature. Stanke v. Swickard, 43
      N.E.3d 245, 249 (Ind. Ct. App. 2015) (citation omitted). While not challenged on appeal, we find this order
      both punitive and an innapropriate exercise of authority. The court had already imposed the sanction of
      “immediate removal of the children” in the event of failure to comply with its orders. DCS Exhibit 5 at 17.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018              Page 3 of 27
[5]   On April 8, 2016, the Children were removed from the care of Mother. 3 In its

      April 11, 2016 Order on Modification of Dispositional Decree, the court

      accepted the recommendation of DCS to modify placement for B.P. and P.P. to

      the care of the maternal great aunt and uncle and for K.P. to the care of the

      paternal cousin, and found in part:


              On February 29, 2016 and again on March 28, 2016, the Court
              ADMONISHED [Mother] and [Father] for NOT putting [the
              Children] as a priority in this proceeding, for NOT following the
              Court’s orders and for continuing to consume and possess
              alcohol. Since that time there [have] been continued missed drug
              screens and failure to complete the substance abuse assessment.

              DCS received a report on 4/27/2016 [sic] alleging [the Children]
              had been provided/had access to alcohol, cigarettes, and []
              inappropriate sexual contact between Mother’s oldest child
              [(“A.W.”)] . . . and a younger half-sibling. [K.P.] reported [P.P.]
              drank from a bottle that was sitting on the table in [Mother’s]
              room and was unable to stand up. [A.W.] age 7, Mother’s child
              from a previous relationship, was able to describe the bottle of
              Fireball [whiskey] and reported [K.P.] and [P.P.] both drank
              from the bottle and that [Mother] was aware that [A.W.] had
              tried a cigarette.


      Id. at 22.




      3
       Entries for April 8, 2016, in the chronological case summaries for the CHINS cases indicate that the trial
      court set a Modification Hearing for April 11, 2016, and state that the court found “the least restrictive
      placement for [the Children] is placement in the care of their maternal great aunt and maternal great uncle
      pending the hearing,” and that the Children “should be removed from the home because continuation in the
      home would not be in the best interest of [the Children] and contrary to the welfare of [the Children].” DCS
      Exhibit 1 at 11; DCS Exhibit 2 at 10-11; DCS Exhibit 3 at 11.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018             Page 4 of 27
[6]   On April 14, 2016, DCS filed a Progress Report which stated in part that it had

      referred Mother on January 12, 2016, to a substance abuse assessment at

      Wabash Valley Alliance in Tippecanoe County; that several weeks after the

      January 12, 2016 referral, Mother said she preferred to complete the substance

      abuse assessment at the Carroll County Wabash branch and family case

      manager Tracy Williams (“FCM Williams”) referred her accordingly; that

      Mother contacted FCM Williams in March of 2016 to ask if she could have the

      assessment billed to DCS because she had a deductible with her Medicaid plan;

      and that, after FCM Williams contacted both the business office at the Carroll

      County Wabash branch and the DCS Medicaid unit and provided the

      information to Mother, Mother refused to complete a substance abuse

      assessment.4


[7]   On April 4, 2017, DCS filed a verified petition for the involuntary termination

      of the parent-child relationship of Mother and Father as to the Children. On

      June 28, 2017, the court held a hearing on the petition at which Mother failed

      to appear.5 Jenny Cahoon, a home-based service provider for Home-Based

      Goal-Focused Services for Children & Families (“HGCF”) who served as a



      4
        The Progress Report also indicated that the allegations which were reported to the DCS hotline the
      morning of April 7, 2016, and which resulted in the removal of the Children included that P.P. “drank
      [F]ireball alcohol and was not able to get up after drinking it while in [Mother’s] care” and Father found P.P.
      in this condition, that A.W. “touched his half-sister innappropriately; he licked the half-sister’s vagina and
      told a relative to do it, too, about 5-6 months ago,” and that Mother texted A.W.’s father to see if A.W. was
      allowed to drink a beer, allowed A.W. to stay in the care of a known drug felon and in the care of “a 14-16
      year old special needs child whom she had only know[n] for a week,” and had sex with Father in front of
      A.W., who slept in their room next to their bed. DCS Exhibit 6 at 20.
      5
          Mother was apprised of the termination hearing by the CASA.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018               Page 5 of 27
“support mechanism” for Mother and Father, testified during the hearing.

Transcript Volume 2 at 10. DCS Exhibit 9, which was admitted at the hearing,

contains the January 2016 Initial Treatment Plan signed by Cahoon that states

under the heading “DCS Service Goals”:


        Help [Mother and Father] develop coping skills so that they do
        not use drugs.

        Parents say they have not used marijuana since January 1st.
        FCM informed this worker that [Mother] had tested positive
        to alcohol. This worker told [Mother] about the positive
        alcohol screen and she said she does drink “Fireball[]”
        [whiskey] nightly. . . . This worker told [Mother] that FCM
        said there is a court order that says [she and Father] can’t
        consume alcohol. [Mother] sent this worker a text stating,
        “I’m not worried about the alcohol. I’m 25 and I’m not on
        probation. CPS’s problem is what’s illegal. And that’s week
        [sic]. So I’m not stopping drinking when I want to drink.”
        [Mother] wants to know who level [sic] for the marijuana
        screen because it should continue to go down.


DCS Exhibit 9 at 2-3. Cahoon testified she started having concerns with the

family shortly after she started working with them and she was conducting

“EtG’s,” or tests for alcohol use, and that both Mother and Father’s tests “were

coming back positive but [Mother’s] were coming back over 10,000 which

shows kind of a chronic pattern of drinking every night.” Transcript Volume 2

at 11. She indicated that, in response to Mother’s admission that she drank

every night, she “went over the Parental Participation Decree and that in

Tippecanoe County you cannot drink.” Id. at 12. She stated Mother was “just

oppositional and defiant” “[a]ll of the time” and would threaten to hurt people

Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 6 of 27
      on a regular basis. Id. When asked to further explain, she testified about an

      incident where Mother said she better “get the police here because [Mother]

      was going to kick [FCM Williams’s] a--” and that “even with two (2) police

      officers there, [Mother] was still having a hard time containing herself.” Id. at

      13.


[8]   Cahoon indicated that Mother would not obtain a job or travel on the bus, that

      she thought Mother never used her for transportation despite that being “part of

      [her] services,” and that she did not believe that Mother and Father did all that

      they could to help themselves to be successful in reunification with the

      Children. Id. at 12, 14-15. When asked to explain her belief, she stated:


              There are a multitude of reasons. We tried to process things
              throughout the case about drinking, about going for drug screens,
              I mean especially [Mother] was not going to do things if she
              didn’t want to do them. She wasn’t going to get up for
              appointments. She wasn’t going to go for drug screens. . . . It
              was just always a “No”. She was not going to do it. . . . She
              would half the time not answer the door. Or she would say they
              didn’t come. Just really hostile. We had several visitation
              facilitators in and out of there.


      Id. at 15. Cahoon testified that Mother was “supposed to do Character

      Restoration and comply with the drug screens and obtain employment,” and

      that “none of those things were ever done well. I mean she started but then she




      Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 7 of 27
       stopped.”6 Id. at 20-21. She testified that, from what she was able to observe,

       Mother was not a good mother because “she would fail to protect her children.”

       Id. at 22.


[9]    Shane Serber, a home-based case manager and visit facilitator from Arising’s

       Incorporated who supervised visits from the middle of October 2016 to

       approximately the second week of December 2016, testified that the family was

       discharged from services in accordance with the company’s late cancellations

       and no-show policy because there were “several late cancellations and at least

       three (3) no shows.” Id. at 26. He testified he had occasion to observe Mother

       with the Children and that Mother “was much more disengaged during the

       visit” and that “there were a couple of occasions where [Mother] spent the

       majority of the visit upstairs in the bedroom not even coming down for 90% of

       the visit.” Id. at 28.


[10]   Taylor Fristoe, an HGCF employee who conducted drop-in visitations with the

       family, testified that she thought Mother was the driving force in a lot of the

       family’s issues. Id. at 53. When asked about the ultimate basis for the

       discharge of Mother from services, she stated:




       6
        Cahoon further clarified by stating that she thought Mother only attended “a couple of Character
       Restorations,” and that, when Mother was ordered to return and she let Mother know that the “Character
       Restoration had started back up,” Mother “said that she wasn’t going to do it.” Transcript Volume 2 at 21.
       An ISS Monthy Report from July 2016 indicates that Mother stopped going to Character Restoration
       because “she missed the maximum amount allowed and has to start over. [Mother] does not feel that she
       needs this class.” DCS Exhibit 9 at 61.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018            Page 8 of 27
        Both parents, but [Mother] especially, were very resistant to me
        coming in. They were very hostile when I was in there.
        [Mother] called me a b---- on several occasions, directly and
        indirectly. When [Father] was the only one (1) in the home, he
        worked very well with me. He was really compliant and
        cooperative and talkative. . . . If [Mother] was there, [Father]
        would not speak to me at all. He would not – he would go along
        with what [Mother] would say. He like spoke to me at the
        beginning of one (1) of the drop-ins, [Mother] said, “Why are
        you even talking to that b----?” And so, then he stopped talking
        to me for the rest of the time I was doing drop-ins. So just with
        [Mother’s] hostility, I just wasn’t comfortable doing the drop-ins
        any longer because it wasn’t effective.


Id. at 52. DCS Exhibit 8, which was admitted at the hearing, contains a

February 23, 2016 Alert Form for HGCF Services signed by Fristoe which

indicated that Fristoe traveled twice on February 17, 2016, to the house for

drop-in visitations and once for case management and reported that no one was

home. A February 23, 2016 Alert Form also states that Fristoe arrived on

February 22, 2016, at the house for a drop-in visitation, “observed the gray van

in the parking lot,” “could head [sic] the television on but not [sic] one

answered the door,” knocked three times and left, and a March 1, 2016 Alert

Form indicated Fristoe arrived at the house on that day for a random drop-in

visitation and knocked three times but no one answered the door. DCS Exhibit

8 at 2. A March 30, 2016 Record of Contacts Intervention Report indicates that

Fristoe arrived at the house for a random drop-in visitation, that the whole

family was present and Mother was on the phone, that Mother declared drop-in

visitations were not to be every day and she wished to know why FCM


Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 9 of 27
       Williams increased them and suggested “just to be a b----,” that Mother stated

       “the b---- is here for the walk through” to the person on the phone, that Fristoe

       asked permission to walk through the house and Mother agreed only because

       “they will get in trouble if they don’t let me,” and that Mother refused to allow

       Fristoe upstairs because one of the Children was sleeping. Id. at 4.


[11]   DCS family case manager Ambyr Wade (“FCM Wade”) testified she had been

       working with the family since July of 2016, that she recommended termination

       of parental rights, and that it was in the Children’s best interest that the rights of

       Mother and Father be terminated and that they be adopted by their current

       placements. When asked about the basis of her opinion as to the best interests

       of the Children, she responded:


               The parents had services for quite some time, both in this CHINS
               case and the previous CHINS case. They have a significant
               history of substance use. They have a significant history of
               domestic violence. Specifically, in this case we have seen the
               behaviors of [Mother] threatening providers. [Father] and
               [Mother] had gotten in physical altercations. We heard
               testimony today about some of those specific incidents. It is just
               a continual repetitive [sic] and [the Children] are in the middle.
               It is not in their best interest. It does not provide safety. It
               doesn’t provide stability. It doesn’t provide permanency and [the
               Children] need that. They need consistent structure. They need
               a nurturing environment and the parents don’t supply that.


       Transcript Volume 2 at 59-60. FCM Wade also indicated that the petition for

       involuntary termination had to do with an incident involving law enforcement

       being called because Mother was threatening to punch the previous case


       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 10 of 27
manager in the cancer port in her chest. She answered affirmatively during

cross-examination when asked by Mother’s counsel “[w]hen [Mother] indicated

that she was going to do all of the services, you did make all of the referrals and

recommendations and gave her all the information.” Id. at 66. She described a

visit conducted at the Bauer House involving Mother that “took a quick turn”

when Mother “couldn’t recover from her aggressive, verbal behaviors,” and

testified that:


        [Mother] was putting [the Children] in the car to be transported
        back to the great grandmother’s house. And the provider – they
        had just eaten during the visit and the provider did not allow
        juice bottles or milk bottles in the car during transport which was
        maybe a five (5) to seven (7) minute transport across town. And
        [Mother] was furious. She was aggravated, and she just went off.
        And she wasn’t going to do her visits anymore and she actually
        refused to go to anymore visits with this provider. It wasn’t
        harmful to the child, it wasn’t going to hurt the child and she just
        didn’t like that somebody told her she couldn’t do something.
        And it was all in front of [the Children].


Id. at 67-68. FCM Wade testified that Mother “participated in intakes which

are like clinical assessments on May 3, 2016 and again in September of 2016.”

Id. at 64. DCS Exhibit 27 includes a Wabash Valley Alliance report signed by

Monica Erk and dated May 3, 2016, and another signed by Deep Battu and

dated September 20, 2016.7 A letter from Battu dated December 1, 2016, states




7
 The May 3, 2016 report indicates that Mother was not open to discussing herself during the intake and
“seemed angry” that she had to go through it, that Mother “made it clear” that she did not want services of
any kind because “she feels that DCS has her going through too many hoops as it is,” that Mother’s drug

Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018            Page 11 of 27
       that Mother did not attend any scheduled appointments during the reporting

       period and that Wabash Valley Alliance would be “discharging and closing her

       [sic] as she has not been seen since September 20, 2016.” DCS Exhibit 27 at 23.

       When asked why she did not place a referral for another psychosocial

       evaluation, she explained that Mother needed to participate in the clinical

       evaluation again for the provider to complete the psychological evaluation and

       the “testimony or in the report written on the psych evaluation is, ‘[Mother]

       didn’t want to participate in that and through this entire case she has not

       participated in services,” and indicated that Mother’s “compliance would not

       be there” and that Mother “hasn’t participated in anything consistently since

       that time.” Transcript Volume 2 at 65. She also testified that she did not

       believe another psychological evaluation would have assisted Mother and

       Father in the case.


[12]   CASA Tammy Lindblom testified at the hearing that she had worked with the

       Children since February 2016, she believed that parental rights should be

       terminated and supported DCS’s plan for adoption, she had been on the case

       since the beginning and had not observed any consistency from either parent,




       levels have consistently decreased and, as a result, the therapist “recommended IOP but stated that she
       wouldn’t make it a requirement” because Mother’s marijuana levels “had gone down,” and that Mother
       stated she did not want to attend IOP. DCS Exhibit 27 at 3. Later, in the Recommendations section, the
       report states that Mother “made it very clear that she did not want to attend IOP.” Id. at 13. The September
       20, 2016 report indicates that Mother reported no mental health symptoms and “continues to meet criteria
       for cannabis abuse and results from her substance evaluation, combined with psychological testing and
       personal history will be considered,” and that “[d]rug screens from April to current will be requested from
       DCS.” Id. at 27. Under the clinical findings section, the report states that Mother would benefit from
       attending individual therapy to address some possible depressive symptoms and being a victim of domestic
       violence and that she “appears to be resistance [sic] to all types of intervention and treatment.” Id.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018           Page 12 of 27
that she was able to begin a relationship with Mother “until [she] disagreed

with or made suggestions to [Father] or [Mother] [and] then there was conflict,”

and that Mother “pretty much from that point refused to talk to [her] after [the

Children] were removed.” Id. at 74. She also stated:


        When visitations were provided I know the testimony today was
        from one (1) service provider, but there was four (4) service
        providers previously that also discharged them from visitation for
        repeated cancellations, no shows or aggression by [Mother] or
        within that visit – still you know again even the visitation part,
        the parents being able to visit, [Father] and [Mother] visiting the
        children did not even provide any consistency for the children.


Id. She answered affirmatively when asked if she thought it would be

detrimental to the well-being of the Children if the visits were to resume and

stated, when asked about the impact on the well-being of the Children if the

court did not terminate the parental rights and instead allowed the continued

relationship, that:


        I think it would be very confusing at this point to [the Children].
        I believe that [K.P.] – even [K.P.’s] therapist agrees that if there
        were any visitation it would be critical that there would be
        someone there to support her in that process. I visited the home
        where the girls are now placed and what I see even in [B.P.] who
        is the two (2) year old, I see a very strong difference in [the
        Children]. They seem – you can tell that they appear very stable.
        They are well cared for and I believe that it would be harmful for
        them not to have that stability that they are receiving right now.


Id. at 75. She stated during cross-examination that “my interactions with

[Mother] and [the Children], she was just kind of there” and that “I really did

Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 13 of 27
       not observe her hug or hold all three (3) of [the Children].” Id. at 79. CASA

       Lindblom also indicated that “there were a lot of service providers that have

       discharged services and yes, DCS workers” and that there have been three DCS

       family case managers over the course of the case. Id. at 83. She agreed that the

       services provided to Mother and Father were appropriate and stated “no” when

       asked if she would say that they took advantage of those services and if there

       were any other services she thought would be beneficial. Id. at 87. She testified

       that it was her belief that Mother and Father were unfit as parents. Id. When

       asked what she would have liked to have seen from Mother and Father, she

       responded:


               I would have like to have seen some consistency, some
               consistency in attending services. There just always seems to be
               excuses about why they could not do things. The biggest thing is
               I felt like they never – there was never an instance of where they
               put the children first. It was all about what they could and
               couldn’t do or couldn’t get to. . . . When they were able to have
               time with their children, the majority I would say eighty percent
               (80%) of the time with the service providers that were willing to
               make exceptions, they did not attend, or they did not show.


       Id. at 88-89.


[13]   Among others, DCS Exhibits 7, 11, 12, and 14 were admitted at the hearing.

       DCS Exhibit 7 included a full psychological evaluation with Dr. Jeff

       Vanderwater-Piercy conducted in 2014. The Monthly Progress Reports and

       Case Notes from Counseling Partners LLC spanning from April 20, 2016, until

       August 2, 2016, when the supervisor became “unable to continue providing

       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 14 of 27
       services,” contain observations of Mother including her becoming upset at a

       child family team meeting, yelling at the team, standing and hitting Father in

       the back and then driving away, notwithstanding her absence of a valid driver’s

       license; her yelling at A.W. and stating “[y]ou’re not involved in a CPS case so

       I will bust your a--”; and her grabbing K.P., spanking her bottom, placing her in

       the corner, and stating “report that to CPS,” in response to K.P. telling Mother

       “you should have asked her to ‘please put it down’ instead of ‘put that f------

       phone down’” and hitting Mother’s cast on her foot. DCS Exhibit 14 at 23, 29.

       The Visitation Reports and Monthly Progress Reports from Bauer Family

       Resources, spanning from August to September 2016, indicate that Mother and

       Father were discharged from services due to a lack of engagement, “no showed

       or cancelled three visits in September on 9/1, 9/6, and 9/8,” and “were asked

       to confirm their visitations before they occurred and two visits were not

       confirmed and cancelled.” DCS Exhibit 11 at 5.


[14]   On October 31, 2017, the court granted the petition to terminate Mother’s

       parental rights. The order contained detailed findings which addressed

       Mother’s drug use, criminal history, participation in services, and hostile

       behaviors. Specifically, the order found:


               4. Neglect (Environmental/Life Health Endangerment) was
               substantiated against Mother and Father in May 2014 after
               [K.P.] tested positive for marijuana. Mother tested positive for
               methamphetamine. The parents admitted domestic violence and
               Mother was observed with bruising on her arms. A CHINS case
               was opened in White County that closed in July 2015 with
               reunification of the family.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 15 of 27
        5. A report of neglect by Mother and Father related to a
        domestic violence incident in front of [the Children] was
        unsubstantiated in July 2014.

        6. DCS received another report of neglect by Mother and Father
        on October 1, 2015. During the investigation, both parents tested
        positive for marijuana. Both parents admitted smoking
        marijuana regularly but denied an addiction. Both parents
        admitted using marijuana when [the Children] are in the home
        and when the parents are responsible for supervising [the
        Children]. The conditions of the home were described as
        cluttered with floors covered in dirt and other items.

                                              *****

        9. . . . Both parents exhibited threatening behaviors and
        profanity toward DCS in the presence of [the Children] and
        made comments about leaving so providers and DCS could not
        locate [the Children].

                                              *****

        13. Mother denies an ongoing history of substance abuse issues
        despite extensive collateral evidence otherwise. Even Father
        acknowledges Mother’s use of synthetic cannabinoids and misuse
        of prescription medication. Mother has demonstrated a chronic
        pattern of alcohol use even during the CHINS case.

        14. During the CHINS proceedings, Mother tested positive for
        marijuana (01/07/2016), marijuana/alcohol (01/21/2016),
        marijuana/alcohol (01/28/2016), marijuana/alcohol
        (02/04/2016), marijuana/alcohol (02/12/2016),
        marijuana/alcohol (02/12/2016), marijuana/alcohol
        (02/22/2016), marijuana/alcohol (03/01/2016), marijuana
        (03/03/2016), marijuana/benzodiazepines–alprazolam
        (04/06/2016), benzodiazepines–alprazolam (04/19/2016),
        benzodiazepines–alprazolam (04/20/2016), benzodiazepines–
        alprazolam (06/13/2016), and benzodiazepines–alprazolam


Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 16 of 27
        (06/22/2016). Mother failed to submit to multiple drug screens
        as requested.

        15. Mother’s criminal history includes both substance use and
        domestic violence. Mother was convicted of Receiving Stolen
        Auto Parts (Class D Felony) and Resisting Law Enforcement
        (Class D Felony) in July 2010. Mother was convicted of
        Criminal Mischief (Class A Misdemeanor) in June 2011. Mother
        was convicted of Conversion (Class A Misdemeanor) in January
        2012. Mother was convicted of Domestic Battery (Class A
        Misdemeanor) in November 2014. Mother was convicted of
        Battery (Class A Misdemeanor) in November 2014. Mother was
        charged with Possession of Synthetic Drug or Lookalike
        Substance (Class A Misdemeanor) in April 2017. Mother was
        charged With Possession of Synthetic Drug or Lookalike
        Substance (Class A Misdemeanor) and Visiting a Common
        Nuisance (Class B Misdemeanor) on May 3, 2017. Mother was
        charged With Possession of Synthetic Drug or Lookalike
        Substance (Class A Misdemeanor) and Possession of
        Paraphernalia (Class C Misdemeanor) on May 25, 2017. All
        charges pending in 2017 remained pending at the time of the
        termination hearing.

        16. Mother completed a psychological evaluation revealing
        below average to well below average intellectual functioning.
        However, test results indicated no cognitive deficits that would
        limit Mother’s ability to benefit from services. Mother failed to
        complete other evaluations as recommended.

        17. Mother failed to consistently participate in any service.
        Mother was disengaged from [the Children] and hostile toward
        service providers during scheduled parenting time. . . . Mother
        has had no contact with [the Children] since December 2016.

        18. Mother and Father when [sic] Mother was twelve (12) years
        of age. Mother and Father married in June 2014. The parents
        demonstrated a pattern of domestic violence, separation, and
        reconciliation. During the CHINS case, the parents separated

Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 17 of 27
        and reconciled several times. Although Father reports a plan to
        file for divorce, [he] travelled to provide Mother with cigarettes
        and soda just two (2) days prior to the termination proceeding.
        Father has always been submissive to Mother’s hostile behaviors
        and has failed to demonstrate an ability to protect the children
        from Mother.

        19. At the onset of the CHINS case, Father resided with Mother
        in Lafayette despite a no trespass warning at Mother’s Section 8
        apartment. Mother has been evicted from her apartment and is
        reportedly homeless. . . . Paternal Grandfather has a history of
        child molest[ation] and Mother has expressed a willingness to
        allow him access to [the Children].

                                              *****

        24. . . . Since removal from the care of the parents, [the
        Children] have thrived in stable environments demonstrating
        improved behaviors and contentment. [The Children] are
        bonded with their respective relative placements and have no
        special needs. [The Children] are adoptable even if the current
        relative placements are unable to adopt for any reason.

        25. Although Mother and Father may love [the Children],
        neither has demonstrated the ability and/or willingness to meet
        [the Children’s] needs for safety, stability, and permanency. The
        long-standing history of domestic violence, substance use, and
        criminal activity displayed by the parents continues today. All
        imaginable services have been offered and nothing is singularly
        different in today’s circumstances since the time of removal. To
        continue the parent-child relationships would be detrimental to
        [the Children]. [The Children] need permanency now.


Appellant’s Appendix Volume 2 at 20-23. The order found it was in the best

interests of the Children that the parental rights of Mother and Father be

terminated and concluded that continuation of the parent-child relationships

Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 18 of 27
       poses a threat to the well-being of the Children, that the Children need stability

       in life and parents with whom they can form a permanent and lasting bond to

       provide for their emotional, psychological, and physical well-being, and that a

       reasonable probability existed that the conditions that resulted in removal of the

       Children from the care of Mother and Father or the reasons for continued

       placement outside the home would not be remedied since “[n]either parent has

       demonstrated the ability or willingness to make lasting changes from past

       behaviors” and “there is no reasonable probability that either parent will be able

       to maintain stability to care and provide adequately for the children.” Id. at 23.


                                                    Discussion

[15]   The issue is whether the trial court erred in terminating Mother’s parental

       rights. In order to terminate a parent-child relationship, 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.

                        (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 79A02-1711-JT-2834 | June 13, 2018   Page 19 of 27
                  (D) that there is a satisfactory plan for the care and treatment of
                  the child.

       Ind. Code § 31-35-2-4(b)(2).8 If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

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


[16]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social

       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. We do not reweigh the

       evidence or determine the credibility of witnesses, but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from the evidence. Id. We confine our review to two steps: whether the

       evidence clearly and convincingly supports the findings, and then whether the

       findings clearly and convincingly support the judgment. Id.


[17]   Reviewing whether the evidence clearly and convincingly supports the findings,

       or the findings clearly and convincingly support the judgment, is not a license to




       8
           Subsequently amended by Pub. L. No. 42-2017, § 2 (eff. July 1, 2017).


       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 20 of 27
       reweigh the evidence. Id. “[W]e do not independently determine whether that

       heightened standard is met, as we would under the ‘constitutional harmless

       error standard,’ which requires the reviewing court itself to ‘be sufficiently

       confident to declare the error harmless beyond a reasonable doubt.’” Id.

       (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

       California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due

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

       firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

       erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,

       989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a

       case that seems close on a ‘dry record’ may have been much more clear-cut in

       person, we must be careful not to substitute our judgment for the trial court

       when reviewing the sufficiency of the evidence.” Id. at 640.


       A. Remedy of Conditions


[18]   We note that the involuntary termination statute is written in the disjunctive

       and requires proof of only one of the circumstances listed in Ind. Code § 31-35-

       2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we

       limit our review to whether DCS established that there was a reasonable

       probability that the conditions resulting in the removal or reasons for placement

       of the Children outside the home will not be remedied. See Ind. Code § 31-35-2-

       4(b)(2)(B)(i).




       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 21 of 27
[19]   In determining whether the conditions that resulted in the Children’s removal

       will not be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d at

       642-643. 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 patterns of conduct to determine whether there

       is a substantial probability of future neglect or deprivation. Id. 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. Id.

       Requiring trial courts to give due regard to changed conditions does not

       preclude them from finding that a parent’s past behavior is the best predictor of

       future behavior. Id. A trial court need not wait until a child is irreversibly

       influenced by a deficient lifestyle such that his or her physical, mental, and

       social growth are permanently impaired before terminating the parent-child

       relationship. In re Z.C., 13 N.E.3d 464, 469 (Ind. Ct. App. 2014), trans. denied.


[20]   Mother argues that DCS did not prove by clear and convincing evidence there

       is a reasonable probability that the circumstances that resulted in the Children’s

       removal would not be remedied and that the trial court’s findings of fact do not

       support its conclusions. She contends that “many of the courts [sic] findings are

       erroneous” and contests two specific findings: first, that she failed to

       consistently participate in any service and second, that she failed to complete


       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 22 of 27
       evaluations as recommended. Appellant’s Brief at 12. She also asserts that all

       reasonable efforts were not made before resorting to the involuntary

       termination of her parental rights and that important referrals for serious issues,

       such as mental health concerns, were ignored. She further contends “[i]t is

       important to note here that Mental Illness was a concern in this case” and that

       the trial court “holds it against Mother for not participating in services when

       Mother cannot participate in services that referrals have not been made and for

       which there was a clear concern of Mental Illness,” and in support points to

       FCM Wade’s testimony as to why Mother was not referred for a psychosocial

       evaluation. Id. at 12-13.


[21]   In response, DCS argues that Mother failed to consistently submit to random

       drug screens and failed to attend visits with the Children, “stopped participating

       in Character Restoration after six sessions and refused to participate any

       further,” refused to participate in individual therapy, and failed to participate in

       homebased services at Promising Futures, Inc. Appellee’s Brief at 23 (citing

       DCS Exhibits 6, 9, 11, 12, 13, 17, 19, and 27). DCS contends that it referred

       Mother to individual therapy, which could have addressed issues of mental

       illness, but she refused to participate in the therapy like she had with many of

       the other services which were offered. In support of the trial court’s finding that

       Mother completed a psychological evaluation and failed to complete other

       evaluations as recommended, DCS asserts that the psychological evaluation

       Mother completed in 2014 was still relevant and that it took Mother months to

       complete the substance abuse assessment at Wabash Valley Alliance, which she


       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 23 of 27
       did on May 3, 2016. DCS additionally points to several findings of fact in the

       trial court’s order to support the conclusion that a reasonable probability existed

       that Mother would not remedy the conditions which resulted in the removal of

       the Children, draws attention to Mother’s lack of visitation with the Children

       since December of 2016, and contends that Mother failed to truly benefit from

       the little services that she had participated in.


[22]   To the extent Mother does not challenge the court’s findings, any unchallenged

       facts stand as proven. See In re Involuntary Termination of Parent-Child

       Relationship of B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to

       challenge findings by the trial court resulted in waiver of the argument that the

       findings were clearly erroneous), trans. denied; McMaster v. McMaster, 681

       N.E.2d 744, 747 (Ind. Ct. App. 1997) (when the father failed to challenge

       specific findings, this Court accepted them as true).


[23]   The record reveals that the February 3, 2016 parental participation decree

       ordered Mother to not consume or possess alcohol, any legend drug, or

       controlled substance without a prescription and to participate in intensive case

       management and in a substance abuse assessment. Mother was found in

       contempt for failure to comply with the parental participation order for having

       consumed alcohol as evidenced by positive drug screens collected on January

       20, 2016, January 28, 2016, February 4, 2016, and February 12, 2016; tested

       positive for substances, including marijuana and alcohol, in January, February,

       March, April, and June of 2016; and was charged with various drug offenses in

       2017. We also observe that, to the extent that Mother did engage in any

       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 24 of 27
       services, she was hostile and aggressive with service providers and that several

       service providers discharged her. Regarding a psychological evaluation, FCM

       Wade testified Mother needed to participate in a clinical evaluation, the

       “testimony or in the report written on the psych evaluation is, ‘[Mother] didn’t

       want to participate in that,’” and that Mother’s “compliance would not be

       there.” Transcript Volume 2 at 65. Considering the record, together with

       Mother’s unresolved substance abuse issues and the unchallenged findings of

       the trial court, we conclude that clear and convincing evidence supports the

       court’s determination that there is a reasonable probability that the conditions

       leading to the Children’s removal will not be remedied. See In re A.S., 17

       N.E.3d 994, 1005 (Ind. Ct. App. 2014) (holding that there was a reasonable

       probability that the conditions that led to the children’s removal, including

       substance abuse, would not be remedied and noting that “while [the mother]

       remedied two of the conditions that led to the children’s removal, there was no

       evidence that she would remedy her substance abuse”).


       B. Best Interests


[24]   We next consider Mother’s assertion that DCS failed to demonstrate that

       termination of her parental rights was in the Children’s best interests. In

       determining what is in the best interests of a child, the trial court is required to

       look beyond the factors identified by DCS and to the totality of the evidence.

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

       App. 2003). In so doing, the court must subordinate the interests of the parent

       to those of the children. Id. Children have a paramount need for permanency

       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 25 of 27
       which the Indiana Supreme Court has called a central consideration in

       determining the child’s best interests, and the Court has stated that children

       cannot wait indefinitely for their parents to work toward preservation or

       reunification and courts need not wait until the child is irreversibly harmed such

       that the child’s physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d

       at 647-648. Recommendations of the case manager and court-appointed

       advocate, in addition to evidence that the conditions resulting in removal will

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

       termination is in the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.

       Ct. App. 2014), trans. denied.


[25]   FCM Wade testified that it was in the Children’s best interest that Mother’s

       rights be terminated and that they be adopted by their current placements.

       CASA Lindblom testified as to her belief that parental rights should be

       terminated and as to her support of DCS’s plan for adoption. Based on this

       testimony, as well as the totality of the evidence contained in the record and as

       set forth in the court’s termination order, we conclude that the court’s

       determination that termination is in the best interests of the Children is

       supported by clear and convincing evidence. See In re A.I., 825 N.E.2d 798, 811

       (Ind. Ct. App. 2005) (concluding that testimony of child advocate and family

       case manager, coupled with evidence that conditions resulting in continued

       placement outside home will not be remedied, is sufficient to prove by clear and

       convincing evidence termination is in child’s best interests), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 26 of 27
                                                    Conclusion

[26]   We conclude that the trial court did not err in terminating the parental rights of

       Mother.


[27]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018   Page 27 of 27
