MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Feb 15 2019, 9:12 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Danielle Sheff                                            Curtis T. Hill, Jr.
Sheff Law Office                                          Attorney General
Indianapolis, Indiana
                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          February 15, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of B.D. and K.D.                             18A-JT-2084
(Minor Children) and                                      Appeal from the Marion Superior
K.L-T. (Mother),                                          Court
                                                          The Honorable Marilyn A.
Appellant-Respondent,
                                                          Moores, Judge
        v.                                                The Honorable Larry Bradley,
                                                          Magistrate
The Indiana Department of                                 Trial Court Cause Nos.
Child Services,                                           49D09-1802-JT-137, -138
Appellee-Petitioner



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019               Page 1 of 13
                                              Case Summary
[1]   K.L-T. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental rights to her minor children, B.D. and K.D. (“the Children”). She

      argues that the Indiana Department of Child Services (“DCS”) failed to present

      clear and convincing evidence to support the trial court’s termination of her

      parental rights. Concluding that DCS presented sufficient evidence, we affirm.


                                  Facts and Procedural History
[2]   Following an evidentiary hearing on July 26, 2018, the trial court made the

      following relevant findings of fact:1


              1. Mother is the mother of B.D. and K.D., minor children born
              on December 16, 2011 and January 10, 2017.

              ….

              3. The parental rights of the children’s father were involuntarily
              terminated on May 29, 2018.

              4. Child in Need of Services Petitions “CHINS” were filed on
              B.D. and K.D. on January 16, 2017, after K.D. was born positive
              for opiates and suffered from withdrawal symptoms. Mother
              tested [positive] for opiates and cocaine.

              5. The children were ordered detained and placed outside the
              home at the January 17, 2017, initial hearing.



      1
        The trial court’s order references Mother and the minor children by their full names. We use “Mother” and
      the Children’s initials where appropriate.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019              Page 2 of 13
        6. The children were adjudicated in need of services on June 7,
        2017, after a fact-finding hearing at which time Mother failed to
        appear.

        7. Disposition was held on July 5, 2017. Mother failed to appear
        at the disposition.

        8. The children had been removed from their mother for at least
        six (6) months under a dispositional decree prior to this
        termination action being filed on February 2, 2018.

        9. Services to address issues of instability, substance abuse, and
        past trauma were ordered and referred.

        10. Prior to April of 2018, Mother failed to engage in any
        service[s]. She instead avoided court and her whereabouts were,
        at times, unknown.

        11. In March of 2017, and prior to disappearing, Mother entered
        Craine House as part of Community Corrections[.] She left
        Craine House without authority.

        12. Mother has been incarcerated since January of 2018, after
        violating probation from a Theft conviction. Her out date is
        October 31, 2018.

        13. Mother testified as to classes she has taken while
        incarcerated. These classes were ninety percent informational.
        14. Alcoholics Anonymous and Narcotics Anonymous is offered
        weekly at the Marion County Jail. Mother has attended nine
        Alcoholics Anonymous sessions, the last being on May 16, 2018.
        She has only attended two Narcotics Anonymous sessions, the
        last being on May 4, 2018.

        15. Although Mother testified she was studying for her GED
        and would test shortly, her inmate records reflect that she
        attended preparation sessions ten times, all being in February of

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019   Page 3 of 13
        2018.

        16. Therapy was referred and an intake session was performed in
        April of 2018 at the jail. Recommendations from the intake
        session included Mother undergo group and individual therapy
        for depression, anxiety, and past trauma, as well as complete an
        intensive outpatient drug treatment program.

        17. Due to conditions at the jail, therapy could not be done.

        18. Mother has a history of criminal activity which includes
        more than one theft conviction as well as a conviction for illegal
        substances. She also has a pattern of violating probation.

        19. Mother has a history of substance abuse which includes
        alcohol, marijuana, cocaine, and opiates.

        20. Mother was a daily heroin user, and last used in January of
        2018, shortly before she became incarcerated.

        21. Mother has not exercised parenting time with B.D. or K.D.
        since the CHINS case opened. K.D. was a few days old.

        22. Since March of 2017, Mother contacted the [DCS] family
        case manager, once by phone and once by letter. She did not
        request visitation.

        ….

        25. The children have been placed with their maternal great-aunt
        since their removal one and one-half years ago. This is the only
        home K.D. has ever known.

        26. The children have been observed doing well and having a
        natural bond with their caretaker.

        27. The children’s placement is preadoptive.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019   Page 4 of 13
              28. Since Mother failed to take advantage of parenting time, it is
              unknown what kind of bond would remain between B.D. and
              her. Mother would be a stranger to K.D.

              29. Due to not taking advantage of chances, the appropriateness
              of the children’s placement, and the children’s right to
              permanency, the family case manager believes terminating
              [M]other’s parental rights would be in the children’s best
              interests.

              30. Given the length of time the CHINS cases have pended, the
              children’s needs being met in their placement, and B.D.’s wishes,
              the Guardian ad Litem is recommending adoption as being in the
              best interests of the children.


      Appealed Order at 1-3.


[3]   Based upon these findings of fact, the trial court concluded that: (1) there is a

      reasonable probability that the conditions that resulted in the Children’s

      removal and continued placement outside the home will not be remedied by

      Mother; (2) there is a reasonable probability that the continuation of the

      relationship between Mother and the Children poses a threat to the Children’s

      well-being; (3) termination of the parent-child relationship between Mother and

      the Children is in the Children’s best interests; and (4) DCS has a satisfactory

      plan for the care and treatment of the Children, which is adoption.

      Accordingly, the trial court determined that DCS had proven the allegations of

      the petition to terminate parental rights by clear and convincing evidence and

      therefore terminated Mother’s parental rights. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019   Page 5 of 13
                                     Discussion and Decision
[4]   “The purpose of terminating parental rights is not to punish the parents but,

      instead, to protect their children. Thus, although parental rights are of a

      constitutional dimension, the law provides for the termination of these rights

      when the parents are unable or unwilling to meet their parental

      responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

      omitted). “[T]ermination is intended as a last resort, available only when all

      other reasonable efforts have failed.” Id. A petition for the involuntary

      termination of parental rights must allege in pertinent 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.


      Ind. Code § 31-35-2-4(b)(2). DCS must prove that termination is appropriate by

      a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019   Page 6 of 13
      (Ind. 2016). If the trial court finds that the allegations in a petition are true, the

      court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


[5]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
              of fact and conclusions thereon, we apply a two-tiered standard
              of review: we first determine whether the evidence supports the
              findings and then determine whether the findings support the
              judgment. In deference to the trial court’s unique position to
              assess the evidence, we will set aside a judgment terminating a
              parent-child relationship only if it is clearly erroneous.


      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

      do not support the trial court’s conclusions or the conclusions do not support

      the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


        Section 1 – Clear and convincing evidence supports the trial
         court’s conclusion that there is a reasonable probability of
                           unchanged conditions.
[6]   We first address the trial court’s conclusion that there is a reasonable

      probability that the conditions that led to the Children’s removal and continued




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019   Page 7 of 13
placement outside the home will not be remedied by Mother.2 In determining

whether there is a reasonable probability that the conditions that led to the

Children’s removal and continued placement outside the home will not be

remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions

led to their placement and retention in foster care.” Id. Second, “we

‘determine whether there is a reasonable probability that those conditions will

not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)

(citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second

step, the trial court must judge a parent’s fitness at the time of the termination

proceeding, taking into consideration evidence of changed conditions, and

balancing a parent’s recent improvements against “‘habitual pattern[s] of

conduct to determine whether there is a substantial probability of future neglect

or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989

N.E.2d at 1231). “A pattern of unwillingness to deal with parenting problems

and to cooperate with those providing social services, in conjunction with

unchanged conditions, support a finding that there exists no reasonable

probability that the conditions will change.” Lang v. Starke Cty. Office of Family




2
 Mother also challenges the trial court’s conclusion that there is a reasonable probability that the
continuation of the parent-child relationship poses a threat to the Children’s well-being. However, Indiana
Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination
of parental rights, the trial court need only find that one of the three requirements of that subsection has been
established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
Ct. App. 2013), trans. denied. Accordingly, we will address only one of the three requirements.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019                    Page 8 of 13
      & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. The

      evidence presented by DCS “need not rule out all possibilities of change; rather,

      DCS need establish only that there is a reasonable probability that the parent’s

      behavior will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.

      2007).


[7]   Here, the Children were originally removed from the home after K.D. tested

      positive for opiates and suffered from withdrawal symptoms. Thereafter,

      Mother failed to participate in the ordered services. Admittedly, she failed to

      participate simply because she “didn’t want to participate.” Tr. Vol. 2 at 17.

      Instead, she chose to go “on the run” to avoid arrest for her ongoing criminal

      behavior. Moreover, since the beginning of the CHINS proceedings, Mother

      never once visited with the Children or inquired about visiting with the

      Children. Mother chose criminal behavior and her addictions over her

      children.


[8]   Mother blames much of her inability to make reunification efforts on her

      current incarceration. Moreover, she complains that the evidence presented by

      DCS concentrated on her past failures and did not take into account her new

      self-declared dedication to changing her ways. However, it was the trial court’s

      prerogative to look to Mother’s habitual patterns of conduct to determine

      whether there is a substantial probability of future neglect or deprivation. The

      trial court specifically noted that even while not incarcerated, Mother did

      nothing toward reunification. The court further concluded that, due to

      Mother’s pattern of criminal activity and failure to follow probation rules, it is

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019   Page 9 of 13
      reasonable to believe that Mother will not remain available as a parent even

      after her release. Mother essentially asks that we reweigh the evidence in her

      favor, and we will not. Clear and convincing evidence supports the trial court’s

      conclusion that there is a reasonable probability that the conditions that led to

      the Children’s removal and continued placement outside the home will not be

      remedied by Mother.


        Section 2 – Clear and convincing evidence supports the trial
         court’s conclusion that termination of Mother’s parental
                  rights is in the Children’s best interests.
[9]   We next address the trial court’s conclusion that termination of Mother’s

      parental rights is in the Children’s best interests. In considering whether

      termination of parental rights is in the best interests of a child, the trial court is

      required to look beyond the factors identified by DCS and look 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 doing so, the trial court must subordinate the

      interests of the parent to those of the child involved. Id. The trial court need not

      wait until the child is irreversibly harmed before terminating parental rights. Id.

      “The historic inability to provide adequate housing, stability, and supervision,

      coupled with the current inability to provide the same, will support a finding

      that continuation of the parent-child relationship is contrary to the child’s best

      interests.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). The testimony

      of service providers may support a finding that termination is in the child’s best

      interests. McBride, 798 N.E.2d at 203.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019   Page 10 of 13
[10]   DCS family case manager Shanika Carter testified that she believed that

       continuation of Mother’s relationship with the Children was not in their best

       interests. She noted that “creating a safe and stable home free from illegal

       activity and illegal substance abuse did not seem to be a priority” for Mother.

       Tr. Vol. 2 at 66-67. She opined that the Children deserve “a parent that is able

       to provide them with a safe and stable home … [and] [t]hey deserve the right to

       permanency.” Id. at 67. She stated that the Children are happy and seem very

       bonded to their current preadoptive caregiver.


[11]   Similarly, Ed Walker, the Children’s guardian ad litem, testified that he

       recommended termination of Mother’s parental rights. He opined that the

       Children needed and desired the permanency that adoption could give them.

       He emphasized the length of time the case had been pending, noting that K.D.

       had been out of Mother’s care since he was only a few days old, and that six-

       year-old B.D. had expressed a desire to stay with his current caregiver. He

       stated that he did not believe that Mother should be given any additional time

       to complete services and that adoption by their current placement was in the

       Children’s best interests. As our supreme court has often stated, “children have

       an interest in terminating parental rights that prevent adoption and inhibit

       establishing secure, stable, long-term, continuous relationships.” K.T.K., 989

       N.E.2d at 1230 (quoting In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). The

       evidence of unchanged conditions coupled with the testimony of service

       providers is sufficient to support the trial court’s conclusion that termination of

       Mother’s rights is in the Children’s best interests.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019   Page 11 of 13
          Section 3 – Adoption is a satisfactory plan for the care and
                         treatment of the Children.
[12]   Finally, Mother challenges the trial court’s conclusion that there is a

       satisfactory plan for the care and treatment of the Children. While the trial

       court must find that there is a satisfactory plan for the care and treatment of the

       child, “[t]his plan need not be detailed, so long as it offers a general sense of the

       direction in which the child will be going after the parent-child relationship is

       terminated.” In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008).

       Generally, adoption is a satisfactory plan. Id.


[13]   It is clear from the record, and the trial court’s findings, that the permanency

       plan here is for the Children to be adopted by their current caregiver, their

       maternal great-aunt. Thus, there is clearly a general sense of direction in which

       these Children will be going, and we reject Mother’s insistence that DCS was

       required to present more detailed evidence regarding the specific living

       circumstances at the preadoptive home. The remainder of Mother’s argument

       against this plan is simply a reiteration of her plea that she be given more time

       to engage in reunification efforts after her release from incarceration. We are

       not wholly unsympathetic to Mother, but we must defer to the trial court’s

       weighing of the evidence here. Decisions to terminate parental rights “are

       among the most difficult our trial courts are called upon to make” and are very

       fact sensitive. E.M. v. Ind. Dep't of Child Servs., 4 N.E.3d 636, 640 (Ind. 2014).

       We will reverse a termination of parental rights only upon a showing of “clear

       error” – that which leaves us with a definite and firm conviction that a mistake

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019   Page 12 of 13
       has been made. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). Based

       on the record before us, we cannot say that the trial court’s termination of

       Mother’s parental rights to the Children was clearly erroneous. Accordingly,

       the trial court’s termination order is affirmed.


[14]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2084 | February 15, 2019   Page 13 of 13
