MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                        Jan 16 2018, 10:26 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark K. Leeman                                            Curtis T. Hill, Jr.
Logansport, Indiana                                       Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         January 16, 2018
Child Relationship of A.Y.L.,                             Court of Appeals Case No.
Minor Child, and A.L., Mother,                            09A02-1708-JT-1960
Appellant-Respondent,                                     Appeal from the Cass Circuit
                                                          Court
        v.                                                The Honorable Leo T. Burns,
                                                          Judge
Indiana Department of Child                               Trial Court Cause No.
Services,                                                 09C01-1702-JT-4
Appellee-Petitioner



Altice, Judge.


                                          Case Summary
Court of Appeals of Indiana | Memorandum Decision 09A02-1708-JT-1960 | January 16, 2018           Page 1 of 8
[1]   A.L. (Mother) appeals following the termination of her parental rights to her

      daughter, A.Y.L. (Child). On appeal, Mother argues that the trial court’s

      conclusion that termination of her parental rights is in Child’s best interests is

      clearly erroneous.


[2]   We affirm.


                                         Facts & Procedural History


[3]   At the time of her birth in December 2015, Child tested positive for opiates and

      experienced withdrawal symptoms, which caused her to be admitted to the

      NICU. Mother admitted to Department of Child Services (DCS) Family Case

      Manager (FCM) Joshua Bault that she had used heroin in the early stages of

      her pregnancy and shortly before Child’s birth. As a result of these events,

      Child was removed from Mother’s care and placed with her biological father,

      D.P. (Father),1 upon her release from the hospital in early January 2016.


[4]   On February 9, 2016, Father was arrested on several charges, including dealing

      in heroin. Because Father was no longer available to care for Child, she was

      placed in foster care. On February 10, 2016, Child was adjudicated a Child in

      Need of Services (CHINS). Following a dispositional hearing, Mother was

      ordered to refrain from using drugs, complete a substance abuse assessment and

      follow all treatment recommendations, submit to random drug screens,




      1
       Father’s parental rights were also terminated, but he does not participate in this appeal. Accordingly, our
      discussion of the facts is limited to those pertinent to the termination of Mother’s parental rights.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1708-JT-1960 | January 16, 2018            Page 2 of 8
      participate in home-based case management, and attend all scheduled

      visitation, among other things.


[5]   Mother completed a substance abuse assessment and it was recommended that

      she complete inpatient treatment followed by intensive outpatient treatment.

      DCS made several attempts to get Mother into treatment, but she failed to show

      up. Mother did not always make herself available for drug screens, and when

      she did, she tested positive for heroin numerous times. Mother finally attended

      inpatient drug treatment in December of 2016. Upon her release, however,

      Mother refused to attend outpatient treatment as recommended and she

      relapsed within a couple of weeks.


[6]   DCS referred Mother to Four County Counseling Center (Four County) for

      home-based case management and supervised visitation, but her participation

      in these services was sporadic at best. Mother attended only a few sessions with

      her home-based case manager, and although she was scheduled to have

      supervised visitation five times a week for one hour at a time, Mother usually

      showed up only one to three times per week. For approximately one week after

      her release from inpatient drug treatment, Mother attended all scheduled visits,

      but when she relapsed, she again stopped showing up. By the end of January

      2017, Four County discharged Mother from services because it had lost all

      contact with her. Four County briefly reinstated services in April 2017, but

      Mother’s participation remained inconsistent and ceased altogether in May

      2017 when Mother was arrested in Utah for possession with intent to distribute

      methamphetamine and hashish.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1708-JT-1960 | January 16, 2018   Page 3 of 8
[7]   DCS filed its petition to terminate Mother’s parental rights on February 27,

      2017. A factfinding hearing was held on June 7, 2017, and on July 30, 2017,

      the trial court issued its order terminating Mother’s parental rights. Mother

      now appeals.


                                       Facts & Procedural History


[8]   When reviewing the termination of parental rights, we will not reweigh the

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

      265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

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

      the trial court’s unique position to assess the evidence, we will set aside its

      judgment terminating a parent-child relationship only if it is clearly erroneous.

      In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

      evidence and inferences support the decision, we must affirm. Id.


[9]   The trial court entered findings in its order terminating Mother’s parental rights.

      When the trial court enters specific findings of fact and conclusions thereon, we

      apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

      Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

      evidence supports the findings, and second, we determine whether the findings

      support the judgment. Id. “Findings are clearly erroneous only when the

      record contains no facts to support them either directly or by inference.” Quillen

      v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous




      Court of Appeals of Indiana | Memorandum Decision 09A02-1708-JT-1960 | January 16, 2018   Page 4 of 8
       only if the findings do not support the court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[10]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[11]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, 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.

       Court of Appeals of Indiana | Memorandum Decision 09A02-1708-JT-1960 | January 16, 2018   Page 5 of 8
                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child. I.C. § 31-35-2-

       4(b)(2)(C).


[12]   Mother does not challenge the trial court’s finding pursuant to subsection

       (b)(2)(B)(i) that there is a reasonable probability that the conditions resulting in

       Child’s removal and continued placement outside her care will not be

       remedied. Rather, she argues that the trial court’s conclusion that termination

       is in Child’s best interests is clearly erroneous.


[13]   In determining 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 consider the totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind.

       Ct. App. 2013). In so doing, the trial court must subordinate the interest of the

       parent to those of the child, and the court need not wait until a child is

       irreversibly harmed before terminating the parent-child relationship. McBride v.

       Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App.

       2003). Our Supreme Court has explained that “[p]ermanency is a central

       consideration in determining the best interests of a child.” In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have previously held that the

       recommendations of the case manager and court-appointed advocate to

       terminate parental rights, in addition to evidence that the conditions resulting in

       removal will not be remedied, is sufficient to show by clear and convincing
       Court of Appeals of Indiana | Memorandum Decision 09A02-1708-JT-1960 | January 16, 2018   Page 6 of 8
       evidence that termination is in the child’s best interests.” In re J.S., 906 N.E.2d

       226, 236 (Ind. Ct. App. 2009).


[14]   Mother takes issue with a number of the trial court’s specific findings. All of

       the challenged findings provide, more or less, that Mother has willfully

       disregarded her obligations to Child. Mother argues that such findings are

       unsupported by the evidence and directs our attention to evidence that Mother

       was affectionate with Child and cared for her during supervised visits.

       Mother’s argument is nothing more than a request to reweigh evidence, which

       we will not do on appeal. Although Mother interacted with Child appropriately

       during supervised visitation, Mother attended less than half of her scheduled

       visits. Indeed, Mother missed over one hundred scheduled visits. Moreover,

       Mother did not follow through with drug treatment as ordered, she continued

       to test positive for heroin, and by the time of the termination hearing, she was

       incarcerated in Utah for possession of methamphetamine and hashish with

       intent to distribute. All of these facts provide support for the trial court’s

       finding that Mother willfully disregarded her parental obligations.


[15]   Mother also argues that the trial court’s conclusion that termination is in

       Child’s best interests is clearly erroneous. Her argument is unpersuasive. As

       the evidence set forth above demonstrates, Mother made virtually no progress

       toward being able to care for Child during the pendency of the CHINS case.

       We also note that the Child’s guardian ad litem and CASA both opined that

       termination was in Child’s best interests. In sum, Child needs permanency and

       stability, but Mother’s continued drug use, refusal to participate in services, and

       Court of Appeals of Indiana | Memorandum Decision 09A02-1708-JT-1960 | January 16, 2018   Page 7 of 8
       failure to visit with Child regularly are more than sufficient to demonstrate that

       she is unwilling or unable to provide as much. The trial court’s conclusion that

       termination is in Child’s best interests is amply supported by the evidence and

       findings.


[16]   Judgment affirmed.


       May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1708-JT-1960 | January 16, 2018   Page 8 of 8
