MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Oct 21 2016, 8:24 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 APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              October 21, 2016
Parent-Child Relationship of                              Court of Appeals Case No.
A.C. (Minor Child),                                       49A02-1604-JT-784
and                                                       Appeal from the Marion Superior
                                                          Court
D.C. (Mother)
                                                          The Honorable Marilyn A.
Appellant-Respondent,                                     Moores, Judge

        v.                                                The Honorable Larry E. Bradley,
                                                          Magistrate

The Indiana Department of                                 Trial Court Cause No.
                                                          49D09-1601-JT-58
Child Services,
Appellee-Petitioner



Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016     Page 1 of 16
[1]   The Marion Superior Court entered an order terminating the parental rights of

      D.C. (“Mother”) to her minor child, A.C. (“Child”). Mother appeals and

      presents one issue, which we restate as whether the Indiana Department of

      Child Services (“DCS”) presented evidence sufficient to support the trial court’s

      termination order.


[2]   We affirm.

                                      Facts and Procedural History

[3]   Mother gave birth to Child in late October 2014. On January 1, 2015, DCS filed

      a petition alleging that Child was a child in need of services (“CHINS”).1 The

      CHINS petition alleged that Child had been removed from Mother after the

      police had found Mother in a hotel room, unconscious from drug use, while

      Child was sleeping. The petition also alleged that Child had been born with

      fetal alcohol syndrome or with a controlled substance in her system. The

      petition further alleged that Mother had tested positive for marijuana and

      methamphetamine, admitted to using ecstasy, had a history of prostitution, and

      lacked stable housing. Child was placed with Mother’s mother and stepfather.

[4]   The court held a detention hearing the following day and authorized Child’s

      removal from Mother. The court also ordered Mother to establish Child’s

      paternity. On March 27, 2015, Mother admitted that Child was a CHINS due




      1
       The CHINS petition also named a putative father, T.S. Paternity testing later revealed that T.S. was not
      Child’s father. As of the date of the termination hearing, Child’s father had still not been identified.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016           Page 2 of 16
      to Mother’s untreated substance abuse problem, and the trial court adjudicated

      Child to be a CHINS. A dispositional hearing was held on April 24, 2015, at

      the conclusion of which the trial court entered a dispositional decree and

      ordered Mother to participate in services, which included home-based case

      management, a substance abuse assessment, random drug screens, and

      visitation with Child.

[5]   DCS referred Mother for home-based therapy at least twice, but Mother failed

      to participate in the service. DCS also referred Mother to home-based case

      management on two separate occasions, but Mother met with the case manager

      only twice during the two referrals. DCS also referred Mother for substance

      abuse treatment twice. Mother eventually completed a substance abuse

      assessment in September 2015 and was recommended to participate in an

      intensive outpatient program and a relapse-prevention program. Mother

      attended a few of the outpatient classes but was discharged from the program

      without successfully completing it. She was terminated from the outpatient Life

      Recovery program because she showed up to a meeting under the influence of

      some intoxicating substance.

[6]   Mother was also inconsistent in her visitation with Child, failing to attend over

      half of the scheduled visitation sessions.2 Despite the trial court’s order to

      undergo random drug screening, Mother failed to submit to any random




      2
          The DCS case manager testified that Mother attended “maybe 50%” of the scheduled visitations. Tr. p. 11.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016           Page 3 of 16
      screening. When Mother gave birth to another child in October 2015, the

      newborn tested positive for amphetamine and methamphetamine. Mother also

      failed to provide DCS with any “concrete answer” when DCS attempted to

      obtain her address. Tr. p. 13.

[7]   Eleven months after the initial CHINS determination, on December 5, 2015,

      the trial court held a permanency hearing and changed Child’s permanency

      plan from reunification with Mother to termination of Mother’s parental rights

      and adoption by Mother’s mother and stepfather. At this time, Mother had

      failed to submit to any drug screens, had not complied with the substance abuse

      treatment offered to her, and had only recently begun to attend visitations on a

      consistent basis.


[8]   On January 14, 2016, DCS filed a petition to terminate Mother’s parental rights

      to Child. The trial court scheduled a hearing for the following day, at which it

      appointed a Court Appointed Special Advocate (“CASA”) for Child. The court

      continued the hearing twice so that Mother could be served. Mother was served

      but still did not appear at the February 12, 2016 hearing. At this hearing, the

      court scheduled a pretrial conference and ordered all parties to appear. Mother

      did not appear for the pretrial conference, nor did she appear at the March 17,

      2016 evidentiary hearing.

[9]   On March 24, 2016, after hearing evidence at the termination evidentiary

      hearing, the trial court entered an order terminating Mother’s parental rights to

      Child. The trial court’s order provided in relevant part:


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016   Page 4 of 16
        8.     Services were ordered and referred to address [Mother’s]
               issues of substance abuse and unstable housing.
        9.     Home based case management services were referred two
               times but [Mother] did not engage, having met with her case
               manager twice since August 2015.
        10. Multiple home based therapy referrals were made but
            [Mother] failed to engage.
        11. [Mother] participated in a second referral for a substance
            abuse assessment but attended only a few of the intensive
            outpatient treatment program that was recommended.
        12. [Mother] was still using drugs, having tested positive less
            than on month ago.
        13. There is a reasonable probability that the conditions that
            resulted in [Child]’s removal and continued placement
            outside the home will not be remedied by her mother who
            has demonstrated by her lack of participation in services and
            court, and inconsistent exercise of parenting time, that she is
            unable or unwilling to address issues of drug abuse and
            instability. Ms. [A] has shown a pattern of not parenting her
            children by the fact that she has three other children who
            have been given up for adoption.
        14. Continuation of the parent-child relationship poses a threat
            to [Child]’s well-being in that it would pose a barrier to
            obtaining permanency for her through adoption when her
            mother cannot provide a safe and stable environment to
            parent and offer permanency.
        15. [Child] has been placed with her grandparents since her
            release from the hospital. This placement is appropriate and
            pre-adoptive.
        16. Termination of the parent-child relationship is in the best
            interests of [Child]. Termination would allow her to be
            adopted into a stable and permanent home where her needs
            will be safely met.


Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016   Page 5 of 16
               17. There exists a satisfactory plan for the future care and
                   treatment of [Child], that being adoption.
               18. The Guardian ad Litem agrees with the permanency plan of
                   adoption as being in [Child]’s best interests.

       Appellant’s App. pp. 11-12.

[10]   Mother now appeals.


                                    Termination of Parental Rights

[11]   The purpose of terminating parental rights is not to punish parents but instead

       to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

       Although parental rights have a constitutional dimension, the law allows for

       their termination when the parties are unable or unwilling to meet their

       responsibilities as parents. Id. Indeed, parental interests must be subordinated to

       the child’s interests in determining the proper disposition of a petition to

       terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).


[12]   Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate

       parental rights must allege:


                    (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 49A02-1604-JT-784 | October 21, 2016   Page 6 of 16
                          (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.

[13]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). However,

       because Indiana Code section 4(b)(2)(B) is written in the disjunctive, the trial

       court is required to find that only one prong of subsection (b)(2)(B) has been

       established by clear and convincing evidence. A.K., 924 N.E.2d at 220.


[14]   Clear and convincing evidence need not establish that the continued custody of

       the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cnty.

       Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). It is instead

       sufficient to show by clear and convincing evidence that the child’s emotional

       and physical development are put at risk by the parent’s custody. Id. If the court

       finds the allegations in a petition are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a).


[15]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility. Id. We

       consider only the evidence and reasonable inferences favorable to the trial

       court’s judgment. Id. In deference to the trial court’s unique position to assess

       the evidence, we will set aside a judgment terminating a parent-child


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016   Page 7 of 16
       relationship only if it is clearly erroneous. Id. Clear error is that which leaves us

       with a definite and firm conviction that a mistake has been made. J.M. v. Marion

       Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.

       denied.


                                     I. Trial Court’s Findings of Fact

[16]   Mother attacks several of the trial court’s factual findings as being unsupported

       by the record. When the trial court enters findings of fact and conclusions

       thereon,3 we apply a two-tiered standard of review: we first determine whether

       the evidence supports the findings and then determine whether the findings

       support the judgment. In re D.B., 942 N.E.2d at 871.


       A. Finding 13

[17]   Mother first directs our attention to the trial court’s finding number 13. Mother

       initially notes that the trial court referred to her “Ms. [A],” substituting Child’s

       first name for Mother’s last name. This is an obvious scrivener’s error and does

       not constitute any reversible error. See Barker v. City of W. Lafayette, 894 N.E.2d

       1004, 1010 (Ind. Ct. App. 2008) (holding that trial court’s use of the word

       “unreasonable” instead of “reasonable” was a harmless scrivener’s error).

[18]   Mother also claims that Finding 13 is erroneous because it states that Mother

       had not “addressed” the issues of drug abuse and instability. Mother claims that




       3
        See Ind. Code § 31-35-2-8(c) (amended effective July 1, 2012 to require the court to enter findings of fact
       when terminating parental rights or dismissing a petition to terminate parental rights).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016             Page 8 of 16
       this is incorrect because she did “address” her substance abuse by undergoing a

       substance abuse assessment and participating unsuccessfully in substance abuse

       treatment. However, Mother is playing word games. There was evidence that

       Mother had not successfully addressed her substance abuse problem, which is

       obviously to what the trial court was referring. Indeed, Mother’s most recent

       child tested positive for amphetamine and methamphetamine at birth. Also, just

       a few weeks before the termination hearing, Mother was dismissed from the

       drug treatment program for showing up for a meeting under the influence.

       Given Mother’s unsuccessful participation in the substance abuse treatment

       program and her continued abuse of illicit drugs, the trial court was well within

       its discretion to conclude that Mother had failed to adequately address her

       substance abuse problem.


[19]   Mother makes a similar argument with regard to her “instability,” which she

       takes as referring to her housing instability. She argues that there was no

       evidence as to where she was living. However, Mother refused to give DCS her

       address or allow DCS access to her home. From this, the trial court could infer

       that Mother lacked stable housing or that her housing was not adequate for

       Child. Thus, the trial court’s finding of instability is not clearly erroneous.


[20]   Mother also claims the trial court’s Finding 13 effectively penalized her for

       consenting to the adoption of three of her other children. Mother does not deny

       that her other three children were adopted with her consent. Mother argues,

       however, that the trial court’s consideration of her consent to these adoptions

       when deciding to terminate her parental rights has the potential to create a

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016   Page 9 of 16
       “chilling effect” on parents’ desire to consent to adoptions if they knew such

       consent could later be held against them. Under the particular facts and

       circumstances of this case, we disagree.


[21]   First, the termination of Mother’s parental rights is not designed to punish the

       parent but to protect the child. In re S.P.H., 806 N.E.2d at 880. Nor can we fault

       the trial court for considering the fact that Mother has either been unable or

       unwilling to care for her other children when considering the termination of her

       parental rights vis-à-vis Child. See In re D.G., 702 N.E.2d 777, 780 (Ind. Ct.

       App. 1998) (holding that specific instances of a parent’s character, including

       evidence regarding a previous termination of parental rights, is admissible

       character evidence at a subsequent termination hearing). Although consenting

       to adoption is generally a laudable act, given Mother’s substance abuse

       problems, we cannot say that Mother’s consent to the adoption of all of her

       other children was irrelevant to Mother’s ability to parent Child.


       B. Finding 14

[22]   Mother next attacks the trial court’s Finding 14 that “[c]ontinuation of the

       parent-child relationship poses a threat to [Child]’s well-being in that it would

       pose a barrier to obtaining permanency for her through adoption when her

       mother cannot provide a safe and stable environment to parent and offer

       permanency.” Appellant’s App. p. 12. Mother claims this finding is erroneous

       because it suggests that Child could not be adopted unless her parental rights

       were terminated, whereas the evidence indicated that Mother had consented to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016   Page 10 of 16
       the adoption of her other children. However, Finding 14 is not simply about

       adoption; it explains Mother’s inability to provide a safe and stable

       environment in which to care for and raise Child. Although Mother now claims

       that there was no evidence that she was asked to consent to the adoption of

       Child, the trial court still properly noted that the termination of Mother’s

       parental rights would facilitate the adoption of Child by her grandparents.


[23]   Moreover, we agree with the State that if Mother desired to consent to the

       adoption of Child, she could have expressed such a desire at the hearing.

       Instead of appearing at the hearing to either contest the termination of her

       parental rights or consent to the adoption, Mother repeatedly failed to appear.

       This failure to appear demonstrates ambivalence toward Child and Mother’s

       parental rights. See A.F. v. Marion Cty. Office of Family & Children, 762 N.E.2d

       1244, 1252 (Ind. Ct. App. 2002); In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct.

       App. 2000). We therefore reject Mother’s argument that she should have been

       allowed to participate in the decision regarding the adoption of Child.


       C. Finding 15

[24]   Mother next attacks the trial court’s Finding 15 that “[Child] has been placed

       with her grandparents since her release from the hospital. This placement is

       appropriate and preadoptive.” Appellant’s App. p. 12. Mother claims, and DCS

       admits, that Child was actually not placed with her grandparents until she was

       removed from Mother’s care after Mother was found unconscious in the hotel

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016   Page 11 of 16
       room. Although this finding is inaccurate, we cannot say it constitutes

       reversible error. The fact remains that Child has been in the care of her

       grandparents since being removed from Mother’s care and that the

       grandparents wish to adopt Child into a caring, loving home.4

[25]   We also reject Mother’s claim that there was no reason for DCS intervention in

       this case. Mother is clearly addicted to illicit drugs and has shown an inability

       to care for Child, having been found unconscious in a hotel room with Child.

       Mother has failed to adequately address her substance abuse problem, failed to

       take advantage of the services offered by DCS, frequently missed scheduled

       visitations with Child, and failed to appear at the termination hearing.

                              II. Conditions that Resulted in Removal

[26]   Interspersed with her attacks on the trial court’s findings, Mother also claims

       that the trial court erred in determining that the conditions which led to Child’s

       removal from Mother or her placement outside Mother’s home will not be

       remedied. When deciding whether there is a reasonable probability that the

       conditions resulting in a child’s removal or continued placement outside of a

       parent’s care will not be remedied, the trial court must determine a parent’s

       fitness to care for the child at the time of the termination hearing while also

       taking into consideration evidence of changed circumstances. A.D.S. v. Ind.



       4
         We likewise reject Mother’s argument that Findings 16 and 17 are erroneous because they state that
       adoption into grandparent’s home is a satisfactory plan for the future care and treatment of Child. As
       discussed more fully below, the trial court properly found that adoption by the maternal grandparents was a
       satisfactory plan for the care and treatment of Child.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016         Page 12 of 16
       Dep’t of Child Servs., 987 N.E.2d 1150, 1156-57 (Ind. Ct. App. 2013). However,

       the trial court may disregard efforts made only shortly before termination and

       weigh more heavily a parent’s history of conduct prior to those efforts. In re

       K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013).


[27]   Here, the trial court could reasonably conclude that the conditions that resulted

       in Child’s removal from Mother and her placement outside of Mother’s home,

       i.e., Mother’s drug abuse, would not be remedied. Mother’s substance abuse

       problems continued unabated throughout this case. She gave birth to another

       child who tested positive for amphetamine and methamphetamine, and she

       failed to successfully complete the substance abuse treatment offered to her. In

       fact, she was removed from an outpatient treatment program when she showed

       up under the influence. Accordingly, the trial court properly concluded that

       DCS proved by clear and convincing evidence that there was a reasonable

       probability that the reasons for Child’s removal from Mother and her placement

       outside Mother’s home would not be remedied. See In re A.S., 17 N.E.3d 994,

       1005 (Ind. Ct. App. 2014) (concluding that evidence supported trial court’s

       finding that the conditions that led to children’s removal, specifically parents’

       substance abuse, would not be remedied, where mother’s substance abuse

       worsened when children were returned to her for a trial home visit, mother

       failed to participate in substance abuse treatment, and father abused drugs when

       the children were placed with him and failed to complete substance abuse

       treatment), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016   Page 13 of 16
                          III. Continuation of Parent-Child Relationship

[28]   Mother also argues that the trial court erred in determining that the

       continuation of the parent-child relationship poses a threat to Child’s well-

       being. Because we conclude that DCS proved that there was a reasonable

       probability that the conditions which resulted in Child’s removal from Mother’s

       care would not be remedied, we need not address Mother’s arguments directed

       at the “threat” prong of Indiana Code section 31-35-2-4(b)(2)(B). See In re A.K.,

       924 N.E.2d at 220 (noting that section 4(b)(2)(B) is written in the disjunctive

       and that the trial court is required to find that only one prong of subsection

       (b)(2)(B) has been established).5

                                       IV. Best Interests of the Child

[29]   The trial court also reasonably concluded that termination of Mother’s parental

       rights was in the best interests of Child. In determining what is in the best

       interests of the child, the trial court must look beyond the factors identified by

       DCS and to look to the totality of the evidence. A.D.S., 987 N.E.2d at 1158.



       5
         Even if we addressed this issue on the merits, Mother would not prevail. In addressing the “threat” prong of
       section 4(b)(2)(B), the trial court must consider the parent’s habitual patterns of conduct to determine the
       probability of future neglect or deprivation of the child. A.D.S., 987 N.E.2d at 1157. The trial court may
       consider evidence of a parent’s prior history of neglect, failure to provide support, and lack of adequate
       housing and employment. Id. DCS is not required to provide evidence ruling out all possibilities of change.
       Id. Instead it needs to establish only that a “reasonable probability” exists that the parent’s behavior will not
       change. Id.
       As noted above, Mother failed to adequately address her substance abuse problem, failed to engage in the
       home-based case management, failed to provide random drug screens, and failed to consistently visit with
       Child. Child has spent all but a few weeks of her life in the care and custody of her maternal grandparents,
       who wish to adopt her. Mother has shown no willingness or ability to change her behavior and lifestyle to
       make her a suitable parent. Accordingly, the trial court did not clearly err in determining that the
       continuation of the parent-child relationship posed a threat to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016             Page 14 of 16
       The trial court must subordinate the interests of the parent to those of the child,

       and the court need not wait until the child is irreversibly harmed before

       terminating the parent-child relationship. Id. Moreover, the recommendation by

       the case manager or child 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 evidence that termination is in the

       child’s best interests. Id.


[30]   Here, Mother repeatedly demonstrated her unwillingness or inability to parent

       Child. She failed to fully participate in services, failed to complete the substance

       abuse therapy offered to her, failed to attend most of the scheduled visitations,

       and failed to even appear at the termination hearing. The family case manager

       testified that termination of Mother’s parental rights was in Child’s best

       interests. Mother’s mother and stepfather currently have custody of Child and

       plan to adopt her. Under these facts and circumstances, the trial court could

       reasonably conclude that termination of Mother’s parental rights was in Child’s

       best interests.


                    V. Satisfactory Plan for Care and Treatment of Child

[31]   Mother also briefly claims that the trial court erred in finding that there was a

       satisfactory plan for the care and treatment of Child. Such a plan need not be

       detailed, so long as it offers a general sense of the direction in which the child

       will be going after the parent-child relationship is terminated. In re J.C., 994

       N.E.2d 278, 290 (Ind. Ct. App. 2013). Here, Child had been in the custody of

       her maternal grandparents since her removal from Mother, and the
       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016   Page 15 of 16
       grandparents plan to adopt the child. This is sufficient to establish that there

       was a satisfactory plan for Child’s care. See id. (affirming trial court’s conclusion

       that there was a satisfactory plan for the care and treatment of the children

       where the children were in pre-adoptive placement with their paternal

       grandmother, who had cared for them for approximately one year).


                                                   Conclusion

[32]   Mother has demonstrated no reversible error in the trial court’s factual findings,

       even though the findings contained one scrivener’s error and one minor

       inaccuracy. Given Mother’s continuing substance abuse problems, the trial

       court did not clearly err in determining that DCS had proven by clear and

       convincing evidence that there was a reasonable probability that the conditions

       which resulted in Child’s removal from Mother’s care would not be remedied

       and that the continuation of the parent child relationship posed a threat to

       Child’s well-being. Moreover, the trial court did not clearly err in determining

       that termination of Mother’s parental rights was in Child’s best interests and

       that there was a satisfactory plan for Child’s care and treatment, i.e., adoption

       by her maternal grandparents. In short, the evidence is sufficient to support the

       trial court’s order terminating Mother’s parental rights to Child.


[33]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-784 | October 21, 2016   Page 16 of 16
