MEMORANDUM DECISION                                                                  FILED
                                                                                Apr 02 2019, 10:21 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                     CLERK
this Memorandum Decision shall not be                                            Indiana Supreme Court
                                                                                    Court of Appeals
regarded as precedent or cited before any                                             and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark Small                                                Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 2, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of A.F. (Minor Child) and J.B.                            18A-JT-1647
(Mother);                                                 Appeal from the Montgomery
                                                          Circuit Court
J.B. (Mother),                                            The Honorable Harry A. Siamas,
                                                          Judge
Appellant-Respondent,
                                                          Trial Court Cause No.
        v.                                                54C01-1712-JT-340


Indiana Department of Child
Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019                            Page 1 of 8
      May, Judge.


[1]   J.B. (“Mother”) appeals the termination of her parental rights to A.F.

      (“Child”). Mother argues termination is not in Child’s best interests. We

      affirm.



                              Facts and Procedural History
[2]   Child was born to Mother and J.A. (“Father”) 1 on July 20, 2016. At the time of

      Child’s birth, the Department of Child Services (“DCS”) received a report that

      Mother tested positive for opiates when Child was born. On July 27, 2016,

      DCS removed Child from Mother’s care because Father overdosed on heroin

      and Mother would not tell DCS where the family lived. DCS placed Child with

      Child’s maternal grandparents. On July 29, 2016, DCS filed a petition to

      declare Child a Child in Need of Services (“CHINS”) based on Mother’s drug

      use, the fact she would not tell DCS where the family lived, and the voluntary

      termination of her parental rights to another child in 2013.


[3]   On August 11, 2016, Mother admitted Child was a CHINS and the trial court

      adjudicated Child as such on September 22, 2016. The trial court also held a

      dispositional hearing on September 22, 2016, and ordered Mother to complete

      the following services: substance abuse assessment, random drug screens,




      1
       J.A., Child’s father, consented to the termination of his parental rights and does not participate in this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019                         Page 2 of 8
      counseling, and supervised visitation with Child. Mother was never in

      compliance with services.


[4]   Between August 2016 and March 2017, Mother tested positive for marijuana

      eleven times. Mother tested positive for methamphetamine on June 5, 2017,

      July 3, 2017, and July 7, 2017. Mother tested positive for opiates on June 16,

      2017, and June 29, 2017. Mother refused to take a drug screen multiple times

      despite being ordered to do so by the court.


[5]   Between August 2016 and October 2017, Mother was offered fifty-nine

      appointments for substance abuse and mental health counseling. She attended

      only forty of those appointments. Mother last visited with Child on July 3,

      2017. On August 6, 2017, Mother was arrested for violating her probation on

      an earlier conviction by committing another crime, Level 6 felony possession of

      a narcotic drug. On November 27, 2017, Mother was convicted of Level 6

      felony possession of a narcotic drug and sentenced to 728 days probation. She

      was then admitted to Amethyst House, an in-patient drug rehabilitation center.

      Mother was unsuccessfully discharged from the program on January 22, 2018,

      for violation of the center’s zero fraternization policy. Mother relapsed into

      drug use shortly thereafter. Mother went to another drug rehabilitation center,

      Harbor Lights, after she left Amethyst House, but left after one day.


[6]   On December 4, 2017, DCS filed a petition to involuntarily terminate Mother’s

      parental rights to Child. On February 14, 2018, Mother was admitted to the

      Seeds of Hope drug recovery facility, where she was actively engaged in


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019   Page 3 of 8
      treatment at the time of the fact-finding hearings. The trial court held fact-

      finding hearings on DCS’s termination petition on March 2, 2018, and June 1,

      2018. On July 10, 2018, the trial court entered an order involuntarily

      terminating Mother’s parental rights to Child.



                                 Discussion and Decision
[7]   We review termination of parental rights with great deference. In re K.S., D.S.,

      & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

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

      Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

      reasonable inferences most favorable to the judgment. Id. In deference to the

      juvenile court’s unique position to assess the evidence, we will set aside a

      judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      534 U.S. 1161 (2002).


[8]   “The traditional right of parents to establish a home and raise their children is

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

      re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

      subordinate the interests of the parents to those of the children, however, when

      evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

      at 837. The right to raise one’s own children should not be terminated solely

      because there is a better home available for the children, id., but parental rights



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019   Page 4 of 8
       may be terminated when a parent is unable or unwilling to meet parental

       responsibilities. Id. at 836.


[9]    To terminate a parent-child relationship, the State must allege and prove:


               (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.


       Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof

       of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

       denied. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[10]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019   Page 5 of 8
       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

       evidence supports the findings and whether the findings support the judgment.

       Id. “Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference.” 2 Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the juvenile court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208. Mother argues the

       involuntary termination of her parental rights is not in Child’s best interests.


[11]   In determining what is in Child’s best interests, the juvenile court is required to

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

       evidence. See In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans.

       dismissed. A parent’s historical inability to provide a suitable environment,

       along with the parent’s current inability to do so, supports finding termination

       of parental rights is in the best interests of the child. In re A.L.H., 774 N.E.2d

       896, 900 (Ind. Ct. App. 2002). The recommendations of a DCS case manager

       and court-appointed advocate to terminate parental rights, in addition to

       evidence that conditions resulting in removal will not be remedied, are

       sufficient to show by clear and convincing evidence that termination is in

       Child’s best interests. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[12]   In its order, the trial court concluded:




       2
         Herein, Mother does not challenge the trial court’s findings, and thus we accept them as true. See Madlem v.
       Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the trial court,
       they must be accepted as correct.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019                      Page 6 of 8
        40. The DCS has proved by clear and convincing evidence that
        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. The child was
        removed from her parents on July 27, 2016. The DCS has
        offered reunification services to both parents but neither parent
        was able to participate in these services in order to overcome
        their parenting deficits. Father consented to termination of his
        parental rights. Mother failed to take advantage of reunification
        services offered to her. She continued an unstable lifestyle. She
        continued to abuse drugs. At the time of the termination hearing
        it is true that mother was doing well in her rehab treatment at
        Seeds for Hope and she should be commended for maintaining
        her sobriety and employment. However, she has not had the
        responsibility to care for Child since Child was five weeks old.
        Mother has not seen the child since July 3, 2017. Mother’s
        absence from Child’s life is due to her inability to maintain a
        stable, sober life. She has had frequent drug abuse interventions
        in the past and she relapsed every time. Hopefully this time will
        be different. Unfortunately, Child cannot wait. Child has been
        cared for and nurtured by others for the past two years. Child
        would not recognize mother as her parent.


        41. The DCS has proven by clear and convincing evidence that
        termination is in the best interests of the child. Neither parent is
        in any better position to provide the child with appropriate care,
        supervision or a safe, nurturing and stable home than they were
        at the beginning of DCS’ involvement with the family. Neither
        parent can meet the child’s needs. Both the DCS case manager
        and the CASA believe that termination is in the bet interest of the
        child.


(App. Vol. II at 11) (errors in original). Mother argues, based on her recent

progress with substance abuse treatment at Seeds of Hope and current



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019   Page 7 of 8
       employment, that termination of her parental rights is not in Child’s best

       interests.


[13]   However, as the trial court noted, Child cannot be left in a state of parental

       instability indefinitely. See In re G.Y., 904 NE.2d 1257, 1265 (Ind. 2009),

       (“Permanency is a central consideration in determining the best interests of a

       child.”), reh’g denied. Additionally, termination being the Child’s best interests

       is supported by the testimony of the Court Appointed Special Advocate

       (“CASA”) who said Child was “clean, healthy, happy and very well cared for

       and loved” by maternal grandparents, with whom she had been placed since

       she was removed from Mother’s care. (Tr. Vol. II at 90.) See A.F. v. Marion Cty.

       Office of Family & Children, 762 NE.2d 1244, 1253 (Ind. Ct. App. 2002)

       (termination in child’s best interests in part because child was thriving in foster

       placement), trans. denied. Mother’s arguments are invitations for us to reweigh

       the evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate

       court cannot reweigh evidence or judge the credibility of witnesses).



                                                Conclusion
[14]   DCS presented evidence to support the trial court’s findings, which support the

       trial court’s conclusion that the involuntary termination of Mother’s parental

       rights was in Child’s best interests. Accordingly, we affirm.


[15]   Affirmed.


       Mathias, J., and Brown, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019   Page 8 of 8
