MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jan 11 2019, 8:58 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 APPELLANTS                                  ATTORNEYS FOR APPELLEE
Erin L. Berger                                           Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana
                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Termination of the                             January 11, 2019
Parent-Child Relationship of:                            Court of Appeals Case No.
                                                         18A-JT-1503
B.M., R.M., and K.M., Jr.
(Minor Children)                                         Appeal from the Vanderburgh
                                                         Superior Court
and
                                                         The Honorable Brett J. Niemeier,
T.M. (Mother) and K.M., Sr.                              Judge
(Father),                                                The Honorable Reneé A.
Appellant-Respondent,                                    Ferguson, Magistrate
                                                         Trial Court Cause No.
        v.                                               82D04-1709-JT-1637
                                                         82D04-1709-JT-1638
The Indiana Department of                                82D04-1709-JT-1639
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019                 Page 1 of 24
      Tavitas, Judge.


                                                  Case Summary
[1]   T.M. (“Mother”) and K.M., Sr. (“Father”) appeal the trial court’s termination

      of their parental rights to B.M., R.M., and K.M., Jr. (the “Children”). We

      affirm.


                                                           Issue
[2]   Mother and Father raise one issue, which we restate as whether the evidence is

      sufficient to support the termination of their parental rights.


                                                          Facts
[3]   In December 2014, the Vanderburgh County Office of the Department of Child

      Services (“DCS”) was notified after Mother was hospitalized for threatening to

      commit suicide and kill her child, K.M., Jr. At the time, Mother was not

      receiving mental health treatment for her anxiety and depression. Mother

      tested positive for amphetamine use, and Adderall medication that was

      prescribed for K.M., Jr.’s attention-deficit hyperactivity disorder was missing. 1


[4]   DCS removed eight-year-old K.M., Jr. 2 from Mother’s and Father’s care on

      December 6, 2014, “due to the lack of a caregiver to provide appropriate




      1
          On drug screens, Adderall can register as a positive result for amphetamine.
      2
       K.M., Jr. was eleven years old at the time of the evidentiary hearing on DCS’ petition to terminate
      Mother’s and Father’s parental rights.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019                  Page 2 of 24
      supervision.” App. Vol. II p. 39. On December 9, 2014, the trial court

      conducted a detention hearing. The trial court deemed K.M., Jr.’s removal to

      be necessary; determined that detention was in K.M., Jr.’s best interest; and

      placed K.M., Jr. with a relative. That same day, DCS filed a petition alleging

      that K.M., Jr. was a child in need of services (“CHINS”).


[5]   At a hearing on December 16, 2014, Mother admitted to the allegations and

      Father stated that he had no objection to a CHINS determination. The trial

      court adjudicated K.M., Jr. as a CHINS. At a dispositional hearing on January

      20, 2015, the trial court granted DCS’ petition for parental participation as to

      Mother and ordered Mother to: (1) submit to random drug screens; (2)

      complete substance abuse evaluation and follow any treatment

      recommendations; (3) remain drug and alcohol free; (4) obtain a mental health

      assessment and evaluation to address her mental health needs and follow all

      treatment recommendations; (5) attend supervised or monitored visitation; (6)

      complete nurturing classes; (7) participate in case management services; and (8)

      comply with her parent aide. The trial court ordered Father to maintain contact

      with DCS.


[6]   B.M. was born on August 7, 2015 3 and tested positive at birth for

      methamphetamine. DCS removed B.M. from Mother’s and Father’s care the

      following day. “At the time of [B.M.’s] birth, the parents had not been




      3
          B.M. was two years old at the time of the evidentiary hearing on DCS’ petition to terminate parental rights.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019                     Page 3 of 24
      compliant” with the trial court’s orders regarding K.M., Jr. Mother used

      methamphetamine during her pregnancy with B.M. and was noncompliant as

      to mental health services and visitation. Id. at 40. Father was enrolled in a

      work release program and, therefore, was unable to supervise and parent K.M.,

      Jr. and B.M.


[7]   On August 11, 2015, DCS filed a petition alleging that B.M. was a CHINS.

      Mother admitted B.M. was a CHINS on August 11, 2015, and Father agreed

      that B.M. was a CHINS on October 29, 2015. B.M. was adjudicated as a

      CHINS. The trial court subsequently ordered Mother and Father “to comply

      with specific services and to fulfill specific obligations as to [B.M.].” Id.


[8]   On March 17, 2016, DCS removed the Children due to Mother’s and Father’s

      drug use. The Children were placed in foster care.


[9]   R.M. was born on September 16, 2016, 4 and DCS removed R.M. from

      Mother’s and Father’s care at the hospital, “[d]ue to ongoing concerns for

      stability, illegal and impairing substance use by the parents, criminal activity by

      the parents, and mother’s ongoing failure to address mental health issues.” Id.

      at 41. On September 20, 2016, DCS filed a petition alleging that R.M. was a

      CHINS. The trial court adjudicated R.M. as a CHINS on December 13, 2016.




      4
          R.M. was one year old at the time of the evidentiary hearing on DCS’ petition to terminate parental rights.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019                     Page 4 of 24
[10]   After Mother’s and Father’s numerous arrests, relapses, and sustained non-

       compliance with the trial court’s orders, DCS filed petitions to terminate

       Mother’s and Father’s parental rights to K.M., Jr. and B.M. in September and

       October 2016. The trial court granted Mother and Father additional time to

       comply with the trial court’s orders. Subsequently, in November 2016 and

       December 2016, respectively, Mother and Father tested positive for narcotics.


[11]   On September 7, 2017, DCS filed petitions to terminate Mother’s and Father’s

       parental rights to the Children. The trial court conducted an evidentiary

       hearing on January 9 and February 26, 2018. In an order dated May 15, 2018,

       the trial court entered findings of fact and conclusions of law and terminated

       Mother’s and Father’s parental rights to the Children. The order provided in

       part:


               1. [Each] [c]hild has been removed from his parents for more
               than six (6) months pursuant to the terms of the dispositional
               decree or the child has been removed from his parents’ care for at
               least fifteen of the past twenty-two months, and


               2. There is a reasonable probability that:


                        a. The conditions which resulted in [the] Child[ren]’s
                        removal and continued placement outside the home will
                        not be remedied;


                        b. That continuation of the parent-child relationship poses
                        a threat to [the] Child[ren]’s wellbeing.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 5 of 24
               3. Termination of parental rights is in [the] Child[ren]’s best
               interests.


               4. There is a satisfactory plan for the care and treatment of [the]
               Child[ren], that being adoption.


       Id. at 51. Mother and Father now appeal.


                                                    Analysis
[12]   Mother and Father challenge the termination of their parental relationship with

       the Children. The Fourteenth Amendment to the United States Constitution

       protects the traditional right of parents to establish a home and raise their

       children. In re K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office,

       989 N.E.2d 1225, 1230 (Ind. 2013). “[A] parent’s interest in the upbringing of

       [his or her] child is ‘perhaps the oldest of the fundamental liberty interests

       recognized by th[e] [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

       120 S. Ct. 2054 (2000)). We recognize, of course, that parental interests are not

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

       proper disposition of a petition to terminate parental rights. Id. Thus,

       “‘[p]arental rights may be terminated when the parents are unable or unwilling

       to meet their parental responsibilities by failing to provide for the child’s

       immediate and long-term needs.’” Id. (quoting In re D.D., 804 N.E.2d 258, 265

       (Ind. Ct. App. 2004), trans. denied).


[13]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re. I.A., 934 N.E.2d 1127, 1132 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 6 of 24
       Ct. App. 2010). We consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. We must also give “due regard” to the

       trial court’s unique opportunity to judge the credibility of the witnesses. Id.

       (quoting Ind. Trial Rule 52(A)).


[14]   Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

       findings of fact that support the entry of the conclusions required by subsections

       (a) and (b).” 5 Here, the trial court did enter findings of fact and conclusions of

       law in granting DCS’s petition to terminate Mother’s and Father’s parental

       rights. When reviewing findings of fact and conclusions of law entered in a

       case involving a termination of parental rights, we apply a two-tiered standard

       of review. First, we determine whether the evidence supports the findings, and

       second, we determine whether the findings support the judgment. Id. We will

       set aside the trial court’s judgment only if it is clearly erroneous. Id. A

       judgment is clearly erroneous if the findings do not support the trial court’s

       conclusions or the conclusions do not support the judgment. Id.




       5
        Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
       delinquent child or CHINS, provide as follows:

               (a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
                   allegations in a petition described in section 4 of this chapter are true, the court shall
                   terminate the parent-child relationship.

               (b) If the court does not find that the allegations in the petition are true, the court shall
                   dismiss the petition.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019                         Page 7 of 24
[15]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:


                        (B)      that one (1) of the following is true:


                                (i)      There is a reasonable probability that the
                                         conditions that resulted in the child’s removal
                                         or the reasons for placement outside the
                                         home of the parents will not be remedied.


                                (ii)     There is a reasonable probability that the
                                         continuation of the parent-child relationship
                                         poses a threat to the well-being of the child.


                                (iii)    The child has, on two (2) separate occasions,
                                         been adjudicated a child in need of services;


                        (C)     that termination is in the best interests of the child;
                                and


                        (D)     that there is a satisfactory plan for the care and
                                treatment of the child.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019    Page 8 of 24
                  I.       Probability that Removal Conditions Will Not be Remedied

[16]   First, Mother and Father argue that DCS failed to establish, by clear and

       convincing evidence, that the conditions that led to the removal of the Children

       will not be remedied. 6 In order to prove this element, DCS must establish (1)

       what conditions led to DCS placing and retaining the children in foster care;

       and (2) whether there is a reasonable probability that those conditions will not

       be remedied. I.A., 934 N.E.2d at 1134. When analyzing this issue, courts may

       consider not only the basis for the initial removal of the children, but also

       reasons for the continued placement of the children outside the home thereafter.

       In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.


[17]   Courts must judge a parent’s fitness to care for his or her child at the time of the

       termination hearing, taking into consideration evidence of changed

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

       (Ind. Ct. App. 2013), trans. denied. The parent’s habitual patterns of conduct

       should be evaluated to determine the probability of future neglect or deprivation

       of the child. Id. Factors to consider include a parent’s prior criminal history,

       drug and alcohol abuse, history of neglect, failure to provide support, and lack




       6
        Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS needed to prove only
       one of the requirements of subsection (B). We conclude there is sufficient evidence of a reasonable
       probability that the conditions resulting in the Children’s removal from Mother’s and Father’s care would not
       be remedied, and we need not address whether there is sufficient evidence that continuation of the parent-
       child relationship posed a threat to the Children. See A.D.S. v. Ind. Dep’t of Child Services, 987 N.E.2d 1150,
       1158 n.6 (Ind. Ct. App. 2013), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019                   Page 9 of 24
       of adequate housing and employment. Id. Courts also may consider services

       offered to the parent by DCS and the parent’s responses to those services. Id.

       DCS is not required to prove a parent has no possibility of changing; it need

       only establish a reasonable probability that no change will occur. Id.


[18]   The trial court found:


                7. * * * * * Both [Mother and Father] have had significant
                   incarceration during the pending CHINS matters, resulting
                   in inability to attend visitation at times, inability to provide
                   supervision and care to the children, and inability to
                   maintain suitable housing.


                                                       *****


               9. The parents were given additional time to demonstrate that
                  they could achieve reunification. Although the parents began
                  to make some improvements following the filing of
                  termination of parental rights and were participating in
                  visitation, mother again tested positive for narcotic substances
                  without a prescription in November of 2016 and father tested
                  positive for narcotic substances without a prescription in
                  December of 2016.


               10. In early 2017, the parents began to display increased non-
                  compliance with programs and orders of the court. Between
                  March and May 2017, mother missed approximately 18 drug
                  screens and father was again in Community Corrections,
                  where he was unable to assume care and placement of the
                  children.


                                                       *****


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 10 of 24
        12. The Father has not shown an ability to provide stability and
           care for the children throughout the CHINS matter. . . .


        13. Father stopped participating in random drug screens in
           September of 2017 and has not demonstrated an ability to
           abide by Court orders, and more importantly, has not
           demonstrated sobriety. This is critical given his long history
           of substance use and his own report that he could [not] keep
           his children in his care due to his substance use.


        14. The children’s father had not visited with the children since
           September of 2017 as of the start of trial. . . .


        l5. Father has been arrested approximately seven times during
            the pending CHINS matters. Father was convicted of fraud
            for stealing a prescription pad from a medical provider.
            Father has been sentenced to work release due to probation
            violations, including a revocation based on a relapse on
            opiates. Father’s petitions to revoke indicate that father has
            difficulty following orders of the court.


        16. Of extreme concern to the court is that the parents were
           involved in a domestic altercation in October of 2017. . . .


        17. ln November of 2017, the parents participated in a court
           facilitation meeting geared toward giving the parents a final
           opportunity to avoid their parental rights being terminated.
           At that meeting, father stated that he could not provide care
           for the children on his own, that he would not participate in
           the services ordered by the court, and that he wanted to give
           custody to the mother. Father left the meeting and did not
           stay to its conclusion. . . .




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 11 of 24
        18. Father now reports that he has been attending drug screens
           and seeking substance abuse treatment. Father failed to notify
           FCM [family case manager] that he was undertaking these
           efforts and did not notify the court facilitator. Additionally,
           evidence from a representative of the Father’s treatment
           provider indicated that screens collected by them were for the
           sole purpose of monitoring compliance with Suboxone
           treatment and were not random; furthermore, father is no
           longer receiving treatment at their facility as of the time of
           trial.


        19. The court has given consideration to father’s current
           treatment but notes that father has attended substance abuse
           treatment previously, including inpatient treatment at
           Stepping Stone, and continued to use illegal and impairing
           substances after completing treatment.


                                              *****


        22. Father reported on the last day of trial that he wants to be,
           and is ready to be, a dad now. The Court believes that Father
           has had three years to make the children a priority and has
           failed to do so. Father’s pattern of behavior speaks more
           loudly than his words and the children should not have to
           wait any longer to determine if father is going to someday be
           able to be a consistent parent to them.


        23. Based on the evidence before the court, the court finds that father is
           not likely to remedy the reasons that each child has remained out of
           his care. Father has not maintained a bond with the children
           in that father failed to take advantage of the opportunity to
           participate in visits with the children. Father does not know
           any information about current conditions or medical care,
           and has not made efforts to gain knowledge about the
           children. . . .

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019      Page 12 of 24
                                              *****


        25. Likewise, Mother has no[t] shown an ability to care for the
           children in a safe and stable manner during the underlying
           CHINS matters.


        26. Mother self-reports that she has been arrested approximately
           five to six times during the pending CHINS matter. Mother
           has had multiple petitions to revoke probation, including for
           relapse on opiates. Mother’s petitions to revoke indicate that
           she has difficulty following orders of the court.


        27. Mother stopped participating in random drug screens in
           October of 2017. . . .


        28. Mother has been residing in the home of her step-father.
           DCS and CASA went to the home in fall of 2017 for a
           scheduled visit in an effort to determine if it might be
           appropriate for reunification. The home was found to be in
           disarray, with prescription bottles in plain view and a bong
           associated with drug use out in plain sight. . . .


        29. At the facilitation meeting in November of 2017, mother
           admitted that she was only taking half of the depression
           medication that she was prescribed. Mother reported that she
           was willing to obtain the mental health treatment that had
           been ordered throughout the CHINS matter but had not been
           doing so. . . .


        30. Mother claimed on the last day of trial that she would be
           starting mental health treatment the Wednesday after trial.


        31. [ ] Mother has had three years to make the children a priority
           and has failed to do so. Mother is aware that she resides with

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 13 of 24
                   a person who uses illegal substances and who is likely to have
                   illegal substances in her home. Mother has not been
                   compliant with drug screens to demonstrate sobriety, which is
                   a key factor considering her history of use. Most importantly,
                   Mother still had not initiated mental health treatment as of
                   the final day of trial. Mother continues to struggle with
                   mental health conditions, which are the very thing that lead to
                   the Department’s intervention in 2014. Based on these facts, the
                   Court finds that Mother is unlikely to remedy the reasons that the
                   children were removed from Mother and the reasons that the children
                   have remained out of her care.


                                                     *****


               33. As with father, Mother’s pattern of behavior speaks more
                  loudly than her words and the children should not have to
                  wait any longer to determine if mother is going to someday be
                  able to be a consistent parent to them.


       App. Vol. II pp. at 42-47 (emphasis added).


[19]   The reasons for the Children’s removal and continued placement outside

       Mother’s and Father’s care included Mother’s mental health and Mother’s and

       Father’s substance abuse and instability. None of these conditions has been

       remedied, and there is a reasonable probability that these conditions will not be

       remedied in the future.


[20]   First, Mother’s mental health issues have not been resolved. DCS family case

       manager (“FCM”) Crystal Hobgood testified that, after Mother threatened to

       commit suicide, Mother was ordered to get a mental health evaluation and to

       follow any resulting recommendations; Mother “never did complete [the

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 14 of 24
       mental health evaluation].” Tr. Vol. II p. 67. Hobgood testified that, when

       pressed by DCS, “[Mother] would just basically say that she could handle it and

       that she was gonna take care of it on her own.” Id. at 81-82. The record

       establishes that Mother finally submitted to the mental health evaluation “two

       and a half, three weeks” before the evidentiary hearing. Id. at 77. Mother

       testified that she would “start counseling on [the] Wednesday” following the

       evidentiary hearing on DCS’ petition to terminate parental rights. Id. at 178.


[21]   Next, Mother’s and Father’s substance abuse issues also remain unresolved.

       For much of the three-year pendency of the CHINS matters, neither Mother

       nor Father achieved demonstrable, sustained sobriety. FCM Salome Lamarche

       testified that, as to drug screens, Father “was pretty much non-compliant the

       whole time”; and Mother “did comply the first few months” before becoming

       “less complian[t].” Id. at 91. FCM Kassidy McGee testified that Mother’s and

       Father’s compliance with random drug screens was “sporadic,” and neither

       achieved sobriety on McGee’s watch. Id. at 100. McGee also testified that

       Mother and Father were suspended from intensive outpatient treatment “for

       non-compliance.” Id. at 103.


[22]   Further, Mother and Father’s substance abuse resulted in multiple arrests and

       periods of incarceration. Mother and Father were each arrested at least five

       times during the pendency of the CHINS matters. On one occasion, Mother

       was arrested for presenting a diluted urine sample during drug testing. FCM

       Hobgood testified as follows:



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 15 of 24
               [Mother] was testin’ positive for Lortabs and opiates with her
               probation officer. She tested positive several times. She actually
               [was] with the parent aide a few times and the parent aide had to
               take [B.M.] back to [Father] because [Mother] was arrested.
               That happened several times. The last time she was arrested the
               probation officer said that they thought that she was gonna have
               a long sentence. So at that time my supervisor and I had met
               with [Father] at his place and discussed some services that we
               could put in the home to help him so that he could work . . . . So
               we were tryin’ to establish some services to help him, such as
               daycare, etcetera, so that he can maintain his job. That day . . .
               he had agreed to the services but later that afternoon he had
               called and asked me to remove his children.


       Id. at 63-64. Hobgood testified that, despite DCS’ offer of support services,

       Father called within an hour to say that “he didn’t think that he can handle all

       the children and that he knew that he would use Lortabs and that he wanted us

       – even though he said that it was very difficult on him . . . he felt that it was

       better for the children to be removed.” Id. at 65.


[23]   Specifically, as to Father’s own substance abuse, FCM Hobgood testified that,

       despite “opportunities to make up,” Father “did not follow through” and

       “didn’t complete the last phase of substance abuse treatment.” Id. at 92.

       Hobgood testified that, on one occasion, after Father tested positive for opiates

       and Oxycontin, DCS agreed to pay for him to enroll in the Stepping Stone

       program. Hobgood testified that “when a bed [be]came available[,] . . . . Father

       refused and said he didn’t wanna do that treatment.” Id. at 66. During the




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 16 of 24
       CHINS pendency, Father tested positive for oxycodone, hydrocodone,

       hydromorphone, benzodiazepine, and morphine. 7


[24]   Although Father testified, at the evidentiary hearing, that he completed

       substance abuse treatment at SelfRefind 8 and submitted to drug screens, Father

       failed to provide documentation to DCS of his enrollment, progress, or test

       results. Moreover, the testimony of both Father and Bailee Edmond, who

       conducted Father’s drug screens, established that Father’s drug testing at

       SelfRefind was scheduled, predictably, every Tuesday. As FCM McGee

       testified, persons who present only sporadically for drug screens “c[an] still be

       active users” and “c[an] screen one week and . . . miss four weeks [while] using

       [drugs] those four weeks.” Id. at 102.


[25]   Additionally, Mother’s and Father’s instability has not been resolved. FCM

       Hobgood testified that Mother and Father were referred to the intensive Home

       Builders program “to help them keep the kids in the home, [and to] help them

       with identifying treatment programs, jobs”; however, services were terminated

       after forty-five days because Mother and Father did not meet consistently with

       Home Builders staff and “wouldn’t comply[.]” Id. at 62. Hobgood testified

       that, after a forty-five-day enrollment in services, Mother and Father “weren’t




       7
           Lamarche testified that Father had a prescription for “[o]ne of them.” Tr. Vol. II p. 92.
       8
           SelfRefind is an outpatient mental health and substance abuse support program.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019                 Page 17 of 24
       able to accomplish the goals,” and DCS “ended up removin[g] the children due

       to [Mother’s and Father’s] positive drug screens.” Id. at 63.


[26]   Another issue of concern for DCS was Mother’s and Father’s housing

       instability and their inability to maintain consistent living conditions fit for the

       Children. Despite DCS’ rent assistance, Mother and Father were evicted from

       their residence “a couple of times” during the pendency of the CHINS matters.

       Id. at 139. Hobgood testified that Mother was in and out of jail 9 and that,

       during one of Mother’s incarcerations, Father had the opportunity to keep the

       children in his home and to keep them from going into foster care. Hobgood

       testified that, after initially agreeing to the plan, Father opted out, and DCS

       removed the Children. Due to a domestic abuse incident in September 2017,

       during the pendency, Mother and Father separated. Mother moved in with her

       stepfather, who self-reported his regular marijuana use and, in whose home

       FCM McGee observed a bong and prescription medication bottles in plain

       view.


[27]   FCM McGee testified that DCS pursued termination of Father’s parental rights

       “due to [his] unwillingness to participate in services”; and because Father

       “admitted he can’t care for all three kiddos.” Id. at 112. McGee testified




       9
        Hobgood testified that, from March through August 2016, Mother was “[o]ff and on” in jail, and “fairly
       most of April to August[, Mother] was in jail.” Tr. Vol. II p. 76.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019              Page 18 of 24
       further that DCS sought termination of Mother’s parental rights because

       Mother “didn’t fully comply, which . . . would’ve meant doing all of her drug

       screens, not missing visits, and doing mental health services. And there was no

       compliance.” Id. at 109. McGee testified that her stance as to Mother would

       not change, even if Mother completed substance abuse treatment, 10 because

       “[i]t’s been three years and there has been no stability so there’s nothing that

       would make me think that it’s gonna change now, especially in a short amount

       of time.” Id. at 112.


[28]   The record reveals that Mother and Father occasionally made progress during

       the pendency of the CHINS matters. Unfortunately, three years later, Mother

       and Father simply failed to demonstrate that they could provide a safe, secure,

       and stable environment for the Children. We acknowledge the hurdles inherent

       in overcoming drug addiction; however, we cannot overlook Mother’s and

       Father’s patterns of abusing drugs, complacency, pursuing substance abuse

       treatment, relapsing, and going to jail. See A.D.S., 987 N.E.2d at 1157 (holding

       that the parent’s habitual patterns of conduct should be evaluated to determine

       the probability of future neglect or deprivation of the child); see id. (holding that

       DCS is not required to prove a parent has no possibility of changing; DCS need

       only establish a reasonable probability that no change will occur). As the trial

       court stated, “the children should not have to wait any longer to determine if




       10
            Mother did complete substance abuse treatment.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 19 of 24
       [Mother or Father are] going to someday be able to be consistent parent[s] to

       them.” App. Vol. II p. 47.


[29]   Based on the foregoing, we find that DCS presented sufficient evidence to

       establish, by clear and convincing evidence, that a reasonable probability exists

       that the conditions resulting in the Children’s removal or the reasons for

       placement outside Mother’s and Father’s care will not be remedied. The trial

       court’s finding in this regard is not clearly erroneous.


                                      II.     Best Interests of the Children

[30]   Next, Mother and Father assert that DCS failed to prove that termination of

       their parental rights is in the Children’s best interests. In determining what is in

       the best interests of a child, the trial court is required to look at the totality of

       the evidence. D.D., 804 N.E.2d at 267. In doing so, the trial court must

       subordinate the interests of the parents to those of the child involved. Id.


[31]   Termination of a parent-child relationship is proper where the child’s emotional

       and physical development is threatened. K.T.K., 989 N.E.2d at 1235. A trial

       court need not wait until a child is irreversibly harmed such that his or her

       physical, mental, and social development is permanently impaired before

       terminating the parent-child relationship. Id. Additionally, a child’s need for

       permanency is a “central consideration” in determining the best interests of a

       child. Id.


[32]   A parent’s historical inability to provide a suitable, stable home environment

       along with the parent’s current inability to do so supports a finding that

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 20 of 24
       termination is in the best interest of the child. In re A.P., 981 N.E.2d 75, 82

       (Ind. Ct. App. 2012). Testimony of the service providers and 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.


[33]   The trial court found:


               1. Each child is in need of a stable, sober caregiver who can
               advocate for the child and give the child a permanent home. The
               Court does not believe, based on either parent’s pattern of
               ongoing behavior, that either of them are [sic] able to serve those
               roles for the child.


               2. The CASA and DCS family case managers involved the
               parents in numerous Child and Family Team meetings in an
               effort to help the parents remain on the path to reunification.
               Despite these efforts and the services provided, the parents have
               not shown a commitment to reunification. As the CASA
               volunteer noted, these children deserve better. Children need
               stability, consistency, they need to feel wanted and loved, to have
               a roof over their head, and food on table. They need boundaries
               to feel secure. These are the exact types of things that the parents
               have not been able to provide and which lead the Court to find
               that termination of parental rights is in the best interests of the
               children.


       App. Vol. II p. 48.

[34]   At the evidentiary hearing, FCM McGee testified that termination of Mother’s

       and Father’s parental rights is in the Children’s best interests “[s]o the[ ]

       [Children] have a safe and stable home to grow up in.” Tr. Vol. II p. 108.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 21 of 24
       McGee testified that K.M., Jr. and B.M. have special medical or mental health

       needs and that the Children all need a caregiver “that can show stability and

       sobriety.” Id. at 109.


[35]   FCM Katharine Thien testified that she recommended termination of Mother’s

       and Father’s parental rights because, three years after being court ordered to do

       so, Mother had yet to complete vital mental health treatment; and Father failed

       to satisfactorily complete substance abuse treatment. CASA Michael Huther

       testified that Mother and Father “lack the stability necessary to maintain a

       household for the kids”; and that Huther could not recommend reunification

       “[b]ecause of the non-compliance with the expectations that the DCS has

       required of [Mother and Father].” Id. at 139.


[36]   The totality of the evidence supports the trial court’s determination that DCS

       proved, by clear and convincing evidence, that termination is in the Children’s

       best interests. Accordingly, the trial court’s finding on this issue is not clearly

       erroneous.


                                             III.     Satisfactory Plan

[37]   Lastly, Mother and Father allege that DCS failed to prove, by clear and

       convincing evidence, that there is a satisfactory plan for the care and treatment

       of the Children. “DCS must provide sufficient evidence there is a satisfactory

       plan for the care and treatment of the child.” In re J.C., 994 N.E.2d 278, 290

       (Ind. Ct. App. 2013) (citing Ind. Code § 31-35-2-4(b)(1)(D)), reh’g denied. The




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 22 of 24
       plan need not be detailed, provided that it offers a general sense of the direction

       in which the child will go, upon termination of the parent-child relationship. Id.


[38]   The trial court found:


               3. DCS did consider the possibility of relative care for the
               children in hopes that a less restrictive option could be found for
               the child, and relative placement was used early on in the case.
               The child’s maternal grandmother subsequently tested positive
               for substances, resulting in removal from her care prior to the
               trial home visit with the parents in November of 2015. Other
               appropriate relatives have not been found.


               4. The court acknowledges that while the youngest child is in pre-
               adoptive placement, the current foster homes for the oldest two
               are only foster homes and are not likely to adopt the children.
               However, the Special Needs Adoption Program matches children
               to adoptive families and the children will be eligible for
               consideration by potential families if parental rights are
               terminated. Both the Court Appointed Special Advocate
               (CASA) and the family case manager believe that the children
               are adoptable. The court agrees that adoption for the children is
               best sought now rather than the children being at a more
               advanced age were parents to be given more time to try to
               complete services.


               5. DCS and the CASA volunteer recommend adoption as the
               plan of care which is in the children’s best interest. The Court
               finds that adoption is in each child’s best interests based on the
               behavior of the parents, and that adoption is a satisfactory plan.


       App. Vol. II p. 48.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 23 of 24
[39]   DCS is only required to offer a general sense of the plan for the Children after

       termination of Mother’s and Father’s parental rights. Here, FCM McGee and

       CASA Huther testified that adoption is the most appropriate plan of care for the

       Children and that each child is “adoptable.” Id.; see Lang v. Starke Cnty. Office of

       Family and Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007) (holding that

       adoption is a satisfactory plan), trans. denied. We find that DCS proved, by

       clear and convincing evidence, that it has a satisfactory plan for the care and

       treatment of the Children; accordingly, the trial court’s finding on this issue is

       not clearly erroneous.


                                                 Conclusion
[40]   The evidence is sufficient to support the termination of Mother’s and Father’s

       parental rights to the Children. We affirm.


[41]   Affirmed.


[42]   Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1503| January 11, 2019   Page 24 of 24
