MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  FILED
court except for the purpose of establishing                          Dec 13 2019, 8:45 am
the defense of res judicata, collateral                                    CLERK
estoppel, or the law of the case.                                      Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT B.M.                              ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 13, 2019
of the Parent–Child Relationship                         Court of Appeals Case No.
of B.M. (Minor Child)                                    19A-JT-1677
and                                                      Appeal from the Vermillion Circuit
                                                         Court
A.M. (Mother),
                                                         The Honorable Jill Wesch, Judge
Appellant-Respondent,
                                                         Trial Court Cause No.
        v.                                               83C01-1810-JT-4


The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019               Page 1 of 11
      Bradford, Judge.



                                                Case Summary
[1]   A.M. (“Mother”) is the biological parent of B.M. (“Child”), (born October 8,

      2006). In May of 2016, Child was adjudicated to be a child in need of services

      (“CHINS”) due to Mother’s drug and alcohol abuse. In October of 2018, the

      Department of Child Services (“DCS”) petitioned for the termination of

      Mother’s parental rights. On June 21, 2019, the juvenile court ordered that

      Mother’s parental rights to Child be terminated. Mother contends that the

      juvenile court’s termination of her parental rights was clearly erroneous. We

      affirm.1



                                 Facts and Procedural History
[2]   On March 28, 2016, DCS learned of allegations of domestic violence, drinking,

      and methamphetamine use by Mother and her boyfriend T.C. On March 30,

      2016, Family Case Manager (“FCM”) Robin Gossett Fisher went to Mother’s

      home to discuss the allegations. Mother denied any drug use but admitted to




      1
          The juvenile court also terminated Father’s parental rights, but he does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019                       Page 2 of 11
      drinking a twelve pack of beer on the weekends when Child was not home.

      FCM Fisher administered a drug screen, and Mother tested positive for

      methamphetamine and amphetamine. FCM Fisher later administered a second

      drug screen on Mother, and she tested positive for methamphetamine,

      amphetamine, Klonopin2, and Morphine. On May 12, 2016, DCS petitioned

      for Child to be adjudicated a CHINS. On May 24, 2016, Child was adjudicated

      to be a CHINS. On July 20, 2016, the juvenile court held a dispositional

      hearing on the CHINS petition and ordered Mother to, inter alia, maintain

      contact and keep all appointments with DCS, enroll in all programs

      recommended by the FCM, maintain suitable and safe housing, secure a legal

      and stable source of income, abstain from consuming any illegal controlled

      substances or alcohol, obey the law, complete a substance abuse assessment and

      follow all recommendations, complete intensive family-preservation program,

      engage in home-based counseling, and submit to random drug and alcohol

      screens.


[3]   Mother was compliant with services until December 27, 2016, when she was

      arrested for domestic battery after beating T.C. with a broom while the two

      were drinking, which resulted in Child’s removal from the home. Mother was

      released from jail at the end of January and began living at CODA, which is a

      facility for domestic violence victims. In February of 2017, while Mother was

      still living at CODA, Child was placed with Mother on a trial home visit. In



      2
          Mother had a valid prescription for Klonopin.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019   Page 3 of 11
      March of 2017, Mother was taken into custody after failing to appear for a court

      hearing. Prior to turning herself in, however, Mother overdosed on Klonopin

      and had to be taken to the hospital. Mother remained incarcerated for several

      weeks and the trial home visit was terminated. On June 19, 2017, Mother pled

      guilty to Level 6 felony domestic battery. Upon her release, Mother was

      compliant with services and unsupervised visitation was implemented.


[4]   In August of 2017, Mother became noncompliant with services, canceling

      appointments with home-based therapy and home-based casework such that

      both were closed out, and her compliance with drug screening was “[o]ff and

      on.” Tr. Vol. II p. 74. On November 1, 2017, Child was again removed from

      Mother’s care after Mother left Child at T.C.’s home for a couple of days while

      she went out drinking. Although T.C. was living in the home at the time, T.C.

      worked from 4:00 a.m. until 3:00 p.m., which left Child unsupervised for

      extended periods of time. After Child’s removal, Mother failed to comply with

      services for the remainder of 2017.


[5]   On January 6, 2018, Mother voluntarily admitted herself into Club Soda, which

      is a rehabilitation center for drug and alcohol addiction. Mother, however, was

      discharged from Club Soda after an altercation with another resident. The other

      resident began yelling at Child because the resident did not want to play a game

      with Child, which resulted in Mother calling the resident a “f*****g f****t” and

      a “[n]****r.” Tr. Vol. II p. 84. In February of 2018, DCS referred Mother to the

      Hamilton Center for a drug and alcohol assessment, which was administered by

      Dominique Jackson. Jackson recommended Mother participate in Matrix

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019   Page 4 of 11
      Group and motivational interviewing, neither of which Mother successfully

      completed. In August of 2018, visitation was ceased at the recommendation of

      Child’s therapist. The Child’s therapist advocated for visitation to stop because

      “Mother is a negative, traumatic influence on Child.” Appellant’s App. Vol. II

      p. 99. During supervised visitation, Mother was telling Child to “act out in the

      foster home, to try to hurt them, to make it difficult so that way she would get

      them home faster.” Tr. Vol. II p. 78. Thereafter, Mother completely stopped

      engaging in services.


[6]   On October 15, 2018, DCS petitioned for the termination of Mother’s parental

      rights. The juvenile court held evidentiary hearings on February 7 and 8, 2019.

      At a hearing, FCM Fisher testified that it was in Child’s best interests that

      Mother’s parental rights be terminated and Child be adopted. FCM Fisher also

      testified that Mother had taken 201 drugs screens over the duration of this

      matter and failed to appear for forty. Mother had tested positive twenty-one

      times for various substances including alcohol, methamphetamine,

      amphetamine, THC, and morphine, with the most recent being on November

      13, 2018. Moreover, FCM Fisher noted that in October of 2018, Mother had

      left FCM Fisher a voicemail regarding birthday presents for Child, and when

      FCM Fisher had returned Mother’s call, Mother had stated that “she hopes

      [FCM Fisher] and [FCM Fisher’s husband] die a slow, miserable death and

      called [FCM Fisher] a fat, f*****g c**t.” Tr. Vol. II p. 80. Guardian Ad Litem

      (“GAL”) Angela Bullock also informed the juvenile court that she believed it




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019   Page 5 of 11
      was in Child’s best interests that Mother’s parental rights be terminated. On

      June 21, 2019, the juvenile court terminated Mother’s parental rights.



                                Discussion and Decision
[7]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The

      parent–child relationship is “one of the most valued relationships in our

      culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.

      2003) (internal citations omitted). Parental rights, however, are not absolute

      and must be subordinated to the child’s interests when determining the proper

      disposition of a petition to terminate the parent–child relationship. Bester, 839

      N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their

      parental responsibilities their rights may be terminated. Id.


[8]   In reviewing the termination of parental rights on appeal, we neither reweigh

      the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

      Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

      We consider only the evidence and reasonable inferences therefrom which are

      most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

      court has entered findings of facts and conclusions of law, our standard of

      review is two-tiered. Id. First, we determine whether the evidence supports the

      factual findings and second, whether the factual findings support the judgment.

      Id. The juvenile court’s findings and judgment will only be set aside if found to

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019   Page 6 of 11
      be clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

      drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

      2005). “A judgment is clearly erroneous if the findings do not support the

      juvenile court’s conclusions or the conclusions do not support the judgment.”

      Id.


[9]   Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

      support a termination of parental rights. Of relevance to this case, DCS was

      required to establish by clear and convincing evidence


              (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.

                        [and]

              (C) that termination is in the best interests of the child[.]


      Ind. Code § 31-35-2-4(b)(2).3 In challenging the sufficiency of the evidence to

      sustain the termination of her parental rights, Mother contends that the juvenile




      3
       It is not disputed that the Child had been removed from Mother for at least six months under a dispositional
      decree and that there was a satisfactory plan for the care and treatment of the Child, both required findings
      pursuant to Indiana Code section 31-35-2-4(b)(2).

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019                 Page 7 of 11
       court erred by concluding that (1) the conditions that resulted in the removal of

       Child from Mother’s care would not be remedied, (2) the continuation of the

       parent–child relationship between Child and Mother posed a threat to Child’s

       well-being, or (3) termination of Mother’s parental rights was in Child’s best

       interests.4



                     I. Indiana Code Section 31-35-2-4(b)(2)(B)
[10]   Mother contends that there is insufficient evidence to establish a reasonable

       probability that the conditions that resulted in Child’s removal would not be

       remedied or that the continued parent–child relationship posed a threat to

       Child. Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the

       disjunctive, DCS was only required to establish one of the circumstances. We

       choose to first address Mother’s contention that the trial court erred by

       concluding that the conditions which resulted in Child’s removal would not be

       remedied.


                In determining whether the conditions that resulted in the
                child[ren]’s removal…will not be remedied, we engage in a two-
                step analysis[.] 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. In the



       4
        Mother challenges the juvenile court’s finding that “An additional report, filed March 29, 2016, alleged that
       the Child was a victim of neglect due to domestic violence in the family’s home.” Appellant’s App. Vol. II p.
       86. While DCS was unable to find an additional report filed on said date, FCM Fisher did testify that the
       initial report that she received on March 28, 2019, alleged “domestic violence, drinking, and
       methamphetamine use.” Tr. Vol. II p. 60. Nonetheless, because there is sufficient evidence outside of this
       erroneous finding to support the juvenile court’s conclusion, it is harmless and in no way prejudiced Mother.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019                  Page 8 of 11
               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 pattern[s] of conduct to determine
               whether there is a substantial probability of future neglect or
               deprivation. 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.
               Requiring trial courts to give due regard to changed conditions
               does not preclude them from finding that parents’ past behavior
               is the best predictor of their future behavior.


       In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (internal citations, quotations, and

       footnote omitted, first and third set of brackets in original, second set added).


[11]   The conditions that led to Child’s removal were alcohol and drug abuse. We

       conclude that DCS has produced ample evidence to establish a reasonable

       probability that these conditions will not be remedied. Throughout this entire

       matter, Mother has failed to maintain sobriety. Mother failed to appear for forty

       drugs screens and tested positive on twenty-one. She tested positive for alcohol,

       methamphetamine, amphetamine, THC, and morphine, with the most recent

       being a November 13, 2018, drug screen which returned positive results for

       methamphetamine, amphetamine, and THC. Moreover, Mother’s substance

       abuse led to her conviction for Level 6 felony domestic battery, after she beat

       her then-boyfriend T.C. with a broom while the two had been drinking.

       Mother’s substance abuse also caused Child to be left unsupervised at T.C.’s

       home for a couple of days while she went out drinking with friends. Mother has

       consistently chosen alcohol and drugs over the welfare of Child. The juvenile


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019   Page 9 of 11
       court did not clearly err in concluding that the conditions that led to Child’s

       removal would not be remedied.


                   II. Indiana Code Section 31-35-2-4(b)(2)(C)
[12]   Mother contends that there is insufficient evidence to support the juvenile

       court’s conclusion that termination of her parental rights was in the Child’s best

       interests. We are mindful that, in determining what is in the best interests of a

       child, the juvenile court must look beyond factors identified by DCS and

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

       App. 2009). The juvenile court need not wait until a child is irreversibly harmed

       before terminating the parent–child relationship because it must subordinate the

       interests of the parents to those of the children. McBride v. Monroe Cty. Office of

       Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have

       previously held that recommendations from the FCM and court-appointed

       special advocate to terminate parental rights, in addition to evidence that

       conditions resulting in removal will not be remedied, is sufficient evidence to

       show that termination is in the child’s best interests. In re J.S., 906 N.E.2d at

       236.

[13]   FCM Fisher testified that it was in Child’s best interests that Mother’s rights be

       terminated and that Child be adopted. GAL Bullock also believed that

       termination of Mother’s parental rights was in Child’s best interests. While

       coupling that testimony with our previous conclusion that there was sufficient

       evidence to show that the conditions of removal would not be remedied is



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019   Page 10 of 11
       sufficient to support the juvenile court’s termination of Mother’s parental rights,

       it is not as though this testimony is unsupported by other evidence in the record.


[14]   In addition to Mother’s substance abuse issues, Mother’s influence on Child

       seems to be detrimental to his well-being. While in the presence of Child at

       Club Soda, Mother used racial and homophobic slurs as she yelled at another

       resident. Mother also told Child to act out in his foster home and hurt his foster

       parent. Moreover, Mother failed to successfully complete services

       recommended by DCS and had her visitation with Child terminated after

       Child’s therapist said it was detrimental to his well-being. Considering the

       totality of the evidence, Mother has failed to establish that the juvenile court’s

       determination that termination was in the Child’s best interest was clearly

       erroneous.


[15]   The judgment of the juvenile court is affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019   Page 11 of 11
