MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Sep 21 2016, 8:25 am

regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Special Assistant to the State Public                    Attorney General of Indiana
Defender
Wieneke Law Office, LLC                                  Robert J. Henke
Brooklyn, Indiana                                        Deputy Attorney General

                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             September 21, 2016
Parent-Child Relationship of:                            Court of Appeals Case No.
R.T., W.T., A.T., K.T., X.J.,                            90A04-1602-JT-302
and A.J.,                                                Appeal from the Wells Circuit
                                                         Court
                                                         The Honorable Kenton W.
M.C. (Mother),                                           Kiracofe, Judge
Appellant-Respondent,                                    Trial Court Cause No.
        v.                                               90C01-1507-JT-28
                                                         90C01-1507-JT-29
Indiana Department of Child                              90C01-1507-JT-30
Services,                                                90C01-1507-JT-31
Appellee-Petitioner.                                     90C01-1507-JT-32
                                                         90C01-1507-JT-33



Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016   Page 1 of 12
      Vaidik, Chief Judge.



                                                 Case Summary
[1]   M.C. (“Mother”) appeals the termination of her parental rights to her six

      children. She argues that the evidence is insufficient to prove there is a

      reasonable probability that the circumstances leading to the children’s removal

      will not be remedied and that termination is in the children’s best interests.

      Concluding that the trial court’s judgment terminating her parental rights is not

      clearly erroneous, we affirm.



                                 Facts and Procedural History
[2]   In 2007, Mother began living with her then-boyfriend, A.T. (“Father”),1 and her

      twin sons from a previous relationship, A.J. and X.J, born June 9, 2006. When

      the twins were two years old, in July 2008, Mother left the home she had been

      sharing with Father and was homeless. Mother voluntarily placed the twins in

      the care of the Indiana Department of Child Services (DCS) because she had no

      place to live. The two boys were placed in foster care and adjudicated children

      in need of services (CHINS). On January 17, 2009, A.T. was born to Mother

      and Father. In April, the twins were returned to Mother, and the CHINS case

      was closed in late June. W.T. was born to Mother and Father February 3,




      1
          Father voluntarily relinquished his parental rights to his four children and is not a party in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016                Page 2 of 12
      2010. Mother and Father were married in November 2010 and had two more

      children together: R.T., born April 10, 2011, and K.T., born June 10, 2013.

[3]   In early January 2014, Mother, Father, and the six children moved into the

      house of Father’s sister who had recently died. A few weeks later, DCS

      received a report that the children were being neglected and that Mother and

      Father were using illegal drugs. The next day, DCS went to the house with two

      deputies and a detective from the Wells County Sheriff’s Department to

      investigate. The house did not have central heat—rather, it had only space

      heaters in some of the rooms—and it was very cold. There was little food

      available to eat. The whole family was using only one of the house’s bedrooms

      to sleep. There was a hole in the wall of that bedroom, allowing the winter air

      to come inside. Sexually explicit magazines, a rifle, broken glass, clothes, toys,

      and cigarette butts littered the bedroom. Mother and Father were both

      disoriented, and Mother disclosed that the couple had used methamphetamine

      that morning. Mother later explained that she had been using heroin regularly

      for two or three years, but she started switching to methamphetamine about

      two weeks before the DCS investigation.

[4]   DCS met the children at paternal grandmother’s house, where Mother and

      Father had taken them that morning because the water lines were frozen at

      Mother and Father’s house. The children showed signs of neglect. For

      example, A.T., W.T., and R.T. were developmentally behind for their ages—

      they were not toilet trained and did not know how to use utensils. All of the

      children had badly chapped skin, and K.T.’s feet were also discolored, causing

      Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016   Page 3 of 12
      DCS to be concerned that she might have frostbite and to take her to a hospital

      to be examined. DCS removed the children and placed them in foster care that

      day. Three days later, the trial court held a detention hearing and found that

      the children should be removed from the home because of the unfit and unsafe

      conditions and because of Mother’s and Father’s methamphetamine use.

[5]   DCS filed a CHINS petition for each of the children, and Mother agreed that

      the children were CHINS. The trial court entered a dispositional order

      requiring, in pertinent part:

              4. The child’s mother and the child’s father shall accept and
              successfully complete the following programs or services:

                       a. Placement in licensed foster care;

                       b. Substance abuse assessment, follow-up and follow any
                       recommendations;

                       c. Initial clinical evaluation;

                       d. Supervised visitation;

                       e. Random drug screens; and

                       f. Home-based services.

              5. The child’s mother and the child’s father shall cooperate with
              the caseworker by maintaining weekly contact, accepting
              announced and unannounced home visits, providing the
              caseworker with verification of income and paternity, financial
              status, change on household composition, and by signing
              releases. The child’s mother and father must report changes to
              the above information within forty-eight (48) hours, not
              including weekends and holidays.


      Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016   Page 4 of 12
      Ex. 2, at 20 p. 5-6.2


[6]   Mother did not comply with the trial court’s order. Mother attended the first

      two visits with her children in February 2014 and missed the third visit. DCS

      suspended visitation pending a meeting with the family case manager and

      explained to Mother that the meeting was necessary to restart visitation, but

      Mother did not attend the scheduled meeting. Mother also refused to provide

      DCS with current contact information. In May 2014, DCS had to request an

      investigator to find Mother. In June, Mother reported that she was living with

      friends, and by October, she had moved back into her mother’s home. Finally,

      in November, she went into treatment at Redemption House for the first time.

      While she was in Redemption House, DCS arranged one visitation for Mother

      with K.T. in January 2015. Shortly thereafter, Mother left treatment “[t]o get

      high[,]” Tr. p. 99, and she moved in with friends. Mother later reported to her

      addictions counselor that, around this time, she was trading sex for drugs. Also

      in January 2015, DCS filed petitions to terminate Mother’s parental rights.

[7]   Mother was arrested in March 2015 and charged with Level 5 felony dealing in

      methamphetamine, Level 6 felony possession of precursors, and Class A

      misdemeanor possession of paraphernalia. Mother opted to enter the drug-

      court program and was placed in Redemption House a second time.




      2
        The trial court entered a separate order for each child. All of the orders are substantially the same. We cite
      this one as representative of all six orders.

      Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016            Page 5 of 12
[8]    On June 23, it became clear that DCS could not complete the hearing on the

       January termination petitions before the 180-day statutory deadline. The trial

       court dismissed the January termination petitions without prejudice, and DCS

       filed the current petitions on July 2, 2015.

[9]    The trial court held three hearings in August and September, while Mother was

       still living in Redemption House. In January 2016, the trial court issued an

       order terminating Mother’s parental rights. Relevant to this appeal, the trial

       court concluded that the conditions that led to the removal of the children from

       the home were unlikely to be remedied and that termination was in the

       children’s best interests.

[10]   Mother now appeals.



                                  Discussion and Decision
[11]   Mother contends that there is insufficient evidence to support the trial court’s

       termination of her parental rights. 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. 2010). Rather, we consider only the evidence and

       reasonable inferences that are most favorable to the judgment of the juvenile

       court. Id. We will not set aside the juvenile court’s judgment unless it is clearly

       erroneous. Id. To determine whether a judgment terminating parental rights is

       clearly erroneous, we review whether the evidence clearly and convincingly

       supports the juvenile court’s findings and whether the findings clearly and


       Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016   Page 6 of 12
       convincingly support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind.

       2016).3

[12]   A petition to terminate parental rights must allege, among other things:


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

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

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

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

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


[13]   Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. In re I.A., 934 N.E.2d at 1133.


           I. Reasonable Probability That the Conditions Resulting
                     in Removal Will Not Be Remedied
[14]   Mother contends that there is insufficient evidence to support the trial court’s

       conclusion that she was unlikely to remedy the conditions that resulted in the




       3
        Mother contends that two of the factual findings entered by the trial court are unsupported by the record.
       Because neither fact affects our analysis, we do not address whether there is support in the record for the trial
       court’s finding.

       Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016             Page 7 of 12
       removal of the children. In determining whether the conditions that resulted in

       a child’s removal or placement outside the home will not be remedied, we

       engage in a two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We

       first identify the conditions that led to removal or placement outside the home

       and, second, determine whether there is a reasonable probability that those

       conditions will not be remedied. Id. The second step requires trial courts to

       judge a parent’s fitness at the time of the termination proceeding, taking into

       consideration evidence of changed conditions, and balancing any recent

       improvements against habitual patterns of conduct to determine whether there

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

       fitness, trial courts have discretion to weigh a parent’s prior history against

       efforts made only shortly before termination, and courts may find that a

       parent’s past behavior is the best predictor of her future behavior. Id.


[15]   Here, the children were removed because of Mother’s failure to supply the

       children with adequate shelter, care, and supervision, and because of Mother’s

       drug use. Mother argues that at the time of the termination hearing, she had

       been sober for six months and she “was prepared to meet the basic needs of her

       children if they were returned to her care.” Appellant’s Br. p. 15. However,

       Mother’s history with drugs and struggling to care for her children goes back

       years, not months. Mother had to place the twins, A.J. and X.J., in DCS

       custody because she had no home in 2008. She testified that she began using

       prescription medication in 2010 and used heroin daily from approximately 2011

       until 2014. When DCS intervened in 2014, Mother was using


       Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016   Page 8 of 12
       methamphetamine, living in squalor with the children, and all of the children

       showed signs of neglect. Mother further acknowledges that, from January 2014

       until March 2015, she “demonstrated a pattern . . . of failing to maintain

       sobriety and of failing to meet the basic needs of her children.” Id. at 14. In

       particular, Mother lived at seven different addresses from January 2014 until

       she was arrested fourteen months later. After her arrest, Mother spent the

       remaining months before the termination hearing in the Allen County Jail and

       Redemption House—also not locations where she could care for her children.

       She did not complete treatment for her addictions before the first petition to

       terminate her parental rights, leaving the treatment facility “[t]o get high.” Tr.

       p. 99. At one point, she reported trading sex to get drugs. She refused to tell

       DCS where she was living. She had no contact with the five older children for

       nineteen months and no contact with the baby for nine months.

[16]   The trial court’s conclusion that the conditions will not be remedied is

       consistent with Prince v. Department of Child Services, 861 N.E.2d 1223 (Ind. Ct.

       App. 2007), which Mother attempts to distinguish. In Prince, we concluded that

       there was sufficient evidence to find the condition leading to removal was

       unlikely to be remedied because Prince made only limited efforts at treatment

       until it was ordered as part of her probation in a criminal cause, and treatment

       did not begin until after the termination petition had been filed. Id. at 1230-31.

       Here, we have substantially the same circumstances. For more than a year,

       Mother made very little progress toward treating her addiction and reuniting

       with her children. Then, in March 2015, after the first termination petitions


       Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016   Page 9 of 12
       were filed, Mother was arrested and charged with two felonies and a

       misdemeanor related to drug use and manufacture. That was when Mother

       opted into drug court and addressed her addiction issues—when her alternative

       was to face criminal charges—not when treatment would have facilitated

       reunification with her children.

[17]   Mother is essentially asking us to reweigh the evidence, giving more weight to

       her recent sobriety than her past history, which we cannot do. See In re E.M., 4

       N.E.3d at 642. Based on Mother’s history and the circumstances surrounding

       her recent sobriety, the trial court did not abuse its discretion in determining

       that the circumstances that resulted in the removal of the children are unlikely

       to be remedied.


                              II. Best Interests of the Children
[18]   Mother next argues that termination is not in the children’s best interests. In

       determining what is in a child’s best interests, the trial court must look to the

       totality of the evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App.

       2013), trans. denied. In so doing, the trial court must subordinate the interests of

       the parent to those of the child. Id. The court need not wait until a child is

       irreversibly harmed before terminating the parent-child relationship. Id. “A

       parent’s historical inability to provide a suitable environment, along with the

       parent’s current inability to do the same, supports finding termination of

       parental rights is in the best interests of the children.” In re J.C., 994 N.E.2d

       278, 290 (Ind. Ct. App. 2013).


       Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016   Page 10 of 12
[19]   In this case, Mother has a lengthy history of not being able to provide a suitable

       home environment for her children, and she spent a substantial portion of the

       time that her children were waiting for her in foster care moving from place to

       place and using methamphetamine. Consequently, she remained unable to

       provide a suitable environment for her children at the time of the termination

       hearings. Beginning in 2008, A.J. and X.J. were adjudicated CHINS because

       Mother could not provide adequate shelter. That CHINS case was resolved in

       2009. Mother was using drugs by 2010, and she was using heroin on a regular

       basis for two or three years before switching to methamphetamine about two

       weeks before the CHINS cases underlying these petitions. Throughout the

       majority of the CHINS proceedings, Mother continued using

       methamphetamine, she moved frequently, and she had no apparent means of

       support. Finally, at the time of the termination hearing, twenty months after

       the children were removed from her care, Mother was living at Redemption

       House and, although she was finally sober and planning for the future, she was

       still without the present ability to care for her children. In contrast, DCS

       presented a satisfactory plan for permanent placement of the children, where

       they will be cared for by parents who are familiar with the children’s special

       needs resulting from years of neglect.

[20]   Based on Mother’s historical inability to care for the children and her inability

       at the time of the termination hearing, the trial court did not err in concluding

       that it is in the children’s best interests to terminate the parent-child relationship

       with Mother.


       Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016   Page 11 of 12
[21]   Affirmed.

       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016   Page 12 of 12
