MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Apr 09 2020, 11:04 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Katherine N. Worman                                       Curtis T. Hill, Jr.
Evansville, Indiana                                       Attorney General of Indiana
                                                          John R. Millikan
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 9, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of A.G., Mother, and D.G and                              19A-JT-2171
D.N, Minor Children,                                      Appeal from the
A.G.,                                                     Vanderburgh Superior Court
                                                          The Honorable
Appellant-Respondent,
                                                          Brett J. Niemeier, Judge
        v.
                                                          The Honorable
                                                          Beverly K. Corn, Referee
Indiana Department of Child
                                                          Trial Court Cause Nos.
Services,                                                 82D04-1902-JT-313
Appellee-Petitioner.                                      82D04-1902-JT-314




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020                     Page 1 of 13
      Kirsch, Judge.


[1]   A.G. (“Mother”) appeals the juvenile court’s termination of her parental rights

      as to D.G and D.N. (collectively, “Children”) and raises three issues, which we

      restate and consolidate as whether the juvenile court’s decision to terminate her

      parental rights was clearly erroneous.


[2]   We affirm.


                                       Facts and Procedural History
[3]   D.G. was born on October 21, 2005, and D.N. was born on August 10, 2007.1

      Appellant’s App. Vol. II at 95, 142. On two separate occasions in 2015, Children

      were adjudicated as CHINS. Ex. Vol. I at 15, 19, 23, 27. This most recent case

      was initiated on February 27, 2018 when the Indiana Department of Child

      Services (“DCS”) filed separate CHINS petitions for D.G. and D.N. based on

      allegations that Mother had tested positive for drugs and that Children were

      having attendance and behavior problems at school. Ex. Vol. I at 51, 62; Tr. Vol.

      II at 31. That same day, the juvenile court adjudicated the Children as CHINS

      based on Mother’s admissions. Ex. Vol. I at 51, 62. The juvenile court allowed

      Children to stay in the home with Mother. Appellant’s App. Vol. II at 96, 151.

      On March 9, 2018 -- less than two weeks after Children were adjudicated




      1
          The putative father of Children is deceased. Appellant’s App. Vol. II at 23, 40.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020           Page 2 of 13
      CHINS -- Mother was arrested and charged with Dealing in a Synthetic Drug

      as a Level 6 felony. Ex. Vol. I at 4, 11.


[4]   At the March 28, 2018 CHINS dispositional hearing, the juvenile court ordered

      Mother to remain drug and alcohol free, seek treatment, submit to random drug

      screens, and attend two to three AA/NA meetings per week. Appellant’s App.

      Vol. II at 23, 40. The juvenile court found that Mother had missed many such

      appointments since the CHINS case had opened. Ex. Vol. I at 52, 63. Mother

      tested positive for methamphetamine on March 28, 2018 and April 6, 2018, and

      the Children were removed from the home on April 6, 2018. Appellant’s App.

      Vol. II at 24, 41; Tr. Vol. II at 75-76. During a case review hearing on August 1,

      2018, Mother admitted she relapsed “a couple of times.” Ex. Vol. I at 35, 66.


[5]   During a permanency hearing on January 30, 2019, the juvenile court found

      that Mother had not pursued substance abuse treatment, that she was living in a

      home with no water and only a generator for electricity, and that DCS stated

      that “nothing has been remedied.” Id. at 59, 69. The juvenile court changed

      the permanency plan to adoption. Id.


[6]   Mother was offered substance abuse treatment during the CHINS proceedings,

      including treatment at the WARM Center, Lighthouse, SafeHaven, Stepping

      Stone, and Brentwood. Tr. Vol. II at 77. Mother did not complete treatment in

      any of those programs. Id. Mother missed three drug screens between March

      2018 and April 2019. Id. at 78-79; Appellant’s App. Vol. II at 25, 42. While

      transportation issues sometimes prevented Mother from submitting to drug


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020   Page 3 of 13
      screens, she stated that “sometimes it was because I was dirty, to be honest with

      you . . . [tested] dirty for methamphetamine.” Tr. Vol. II at 37. Of the drug

      screens to which Mother submitted, she tested positive for unprescribed or

      illegal substances approximately nine times. Id. at 79; Appellant’s App. Vol. II at

      25, 42. Mother “absolutely” considers herself an addict and considers

      methamphetamine as her “drug of choice.” Tr. Vol. II at 28, 43. During the

      CHINS proceedings, Mother also tested positive for benzodiazepines and

      oxycodone. Id. at 79.


[7]   On February 15, 2019, DCS filed petitions to terminate Mother’s parental rights

      as to Children, and on May 8, 2019 and July 8, 2019, the juvenile court

      conducted hearings on DCS’s petitions. Appellant’s App. Vol. II at 21, 38.

      Mother acknowledged that Children “absolutely” should be adopted if she was

      unable to “be stable.” Tr. Vol. II at 49. Mother then admitted that she has

      “never known stability” due to her substance abuse and that the fear of losing

      Children never kept her sober. Id. Mother admitted that she had “plenty of

      time to . . . get solid ground underneath [her] feet” but could not curb her

      substance abuse. Id. at 51.


[8]   Mother also testified that she could not promise that she would not relapse

      again. Id. She admitted that she had last used methamphetamine three days

      before the second termination hearing, and despite her addictions, she was not

      in treatment at the time of the hearings. Id. at 43. Also, at the time of the

      second termination hearing, Mother was in custody on a petition to revoke her

      bond in her criminal case because she had tested positive for methamphetamine

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020   Page 4 of 13
       and had failed to sign up for drug treatment programs. Id. at 27; Appellant’s

       App. Vol. II at 26, 42-43.


[9]    Family Case Manager Lauren Koehler (“FCM Koehler”) testified that after

       several years of instability and substance abuse by Mother, it was in the best

       interests of Children to have Mother’s parental rights terminated. Tr. Vol. II at

       82, 84. Specifically, FCM Koehler testified that the last sixteen months have

       left Children “angry and confused.” Id. at 84. FCM Koehler also observed that

       Children have been subject to three CHINS adjudications in the past five years,

       and she testified that Children needed stability. Id. at 85. FCM Koehler also

       stated that the constant involvement by DCS has traumatized Children, who

       need a consistent schedule to function daily. Id. at 84.


[10]   Court Appointed Special Advocate Jean Karmire (“CASA Karmire”) testified

       that D.G. needed to be able to “get up every day and know that this is what’s

       gonna happen on that day and not be worried about his Mother using meth or

       his Mother not being able to provide him food and shelter that he needs.” Id. at

       95. CASA Karmire further testified that D.N. “needs to be in an environment

       where she can have consistency, know that someone is there every day for her.”

       Id. at 96. In a report filed a few days before the second hearing, CASA Karmire

       stated that “[b]ased on [M]other’s recent positive methamphetamine screen

       through the DAPS program and subsequent PTR; multiple positive screens

       throughout the case; inconsistency with screening for DCS; and lack of

       consistent, stable housing; CASA feels it is in the children’s best interest for



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020   Page 5 of 13
       mother’s rights to be terminated and the children to be made available for

       adoption.” Appellant’s App. Vol. II at 86-87.


[11]   On August 14, 2019, the juvenile court issued its termination orders. Id. at 88,

       141. In those orders, the juvenile court concluded that Mother would not

       remedy the reasons that Children were removed from the home for the

       following reasons:


               a. This is the third (3rd) CHINS matter filed since 2015 with all
               based, in part, on substance abuse;


               b. Mother has not completed substance abuse treatment since the
               filing of the most recent CHINS, despite having been referred to
               and entered into at least three (3) different programs since the
               CHINS case opened in February 2018;


               c. Mother continues to abuse methamphetamine and used it
               within three (3) days of the termination fact finding trial;


               d. Mother has not been able to maintain stable housing for more
               than 30-90 days, having been in several locations from jail to a
               shelter to a hotel to staying with friends and her own mother,
               who is known to abuse drugs;


               e. Mother was arrested for a drug related criminal matter, which
               matter remained unresolved on the date of the termination fact
               finding trial[.]


       Id. at 30, 47. The juvenile court also found that Mother 1) was unable to

       maintain sobriety and 2) was provided a stable housing program through



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020   Page 6 of 13
       SafeHaven, but she did not comply with the program’s rules and was asked to

       leave. Id. at 26, 43.


[12]   As to its conclusion that termination of Mother’s parental rights was in the best

       interests of Children, the juvenile court found, as to D.G., that:


               [[D.G.] has suffered with] anger management, intermittent
               explosive disorder, and conduct disorder] for several years;
               however, he is extremely angry with Mother, which has
               exacerbated his aggressive behaviors;


               ....


               [Mother is unable] to provide appropriate care and supervision
               for [D.G.];


               ....


               Mother’s continuing pattern of substance abuse, unemployment,
               and housing instability in the past indicates that maintaining a
               parent-child relationship with [D.G.] is not in the best interests of
               [D.G.].


       Id. at 44. As to D.N.’s best interests, the juvenile court also found that Mother

       was unable to provide appropriate care and supervision and that Mother’s

       ongoing substance abuse, unemployment, and housing instability indicated that

       termination of the parent-child relationship was in D.N.’s best interests. Id. at

       27. The juvenile court also found that termination of Mother’s parental rights

       was in D.N.’s best interests because Mother could not provide the stability that

       D.N. needed. Id. Mother now appeals.
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020   Page 7 of 13
                                       Discussion and Decision
[13]   Mother argues DCS failed to present clear and convincing evidence to support

       the termination of her parental rights under Indiana Code section 31-35-2-

       4(b)(2)(B),(C) because 1) there was a reasonable probability that the conditions

       that resulted in Children’s removal would be remedied and the continuation of

       the parent-child relationship would not pose a threat to Children’s well-being,

       and 2) termination was not in Children’s best interests. Mother concedes that

       DCS presented clear and convincing evidence to satisfy its burden of proof

       under subsection (b)(2)(A), concerning the period of removal from home and

       efforts at reunification, and subsection (b)(2)(D), concerning whether there is a

       satisfactory plan for the care and treatment of Children.


[14]   As our Supreme Court has observed, “Decisions to terminate parental rights are

       among the most difficult our trial courts are called upon to make. They are also

       among the most fact-sensitive -- so we review them with great deference to the

       trial courts[.]” E.M. v. Ind. Dep’t of Child Servs., 4 N.E.3d 636, 640-43 (Ind.

       2014). We consider only the evidence and reasonable inferences that are most

       favorable to the judgment. In re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App.

       2009). Therefore, we will set aside the court’s judgment terminating a parent-

       child relationship only if it is clearly erroneous. Id. at 148-49.


[15]   While the Fourteenth Amendment to the United States Constitution protects

       the traditional right of a parent to establish a home and raise his or her child

       and parental rights are of a constitutional dimension, the law allows for the

       termination of those rights when a parent is unable or unwilling to meet his
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020   Page 8 of 13
       responsibility as a parent. Bester v. Lake Cty. Office of Family & Children, 839

       N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.

       2001), trans. denied. Termination of parental rights is proper where the child’s

       emotional and physical development is threatened. Id.


[16]   Where, as here, the juvenile court entered specific findings and conclusions, we

       normally apply a two-tiered standard of review. In re B.J., 879 N.E.2d 7, 14

       (Ind. Ct. App. 2008), trans. denied. First, we determine whether the evidence

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

       the judgment. Id. Here, because Mother does not claim that the findings are

       not supported by the evidence in the record, we need only determine whether

       the findings support the juvenile court’s legal conclusions. See Madlem v. Arko,

       592 N.E.2d 686, 687 (Ind. 1992) (Unchallenged findings “must be accepted as

       correct.”).


[17]   On appeal, Mother claims that DCS failed to prove:


               (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 19A-JT-2171| April 9, 2020   Page 9 of 13
               (C) that termination is in the best interests of the child[.]


       Ind. Code § 31-35-2-4(b)(2)(B),(C). The State’s burden of proof is clear and

       convincing evidence. In re H.L., 915 N.E.2d at 149. If the juvenile court finds

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

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


[18]   Because DCS’s burden of proof under subsection b(2)(B) of Indiana Code

       section 31-35-2-4(b)(2)(B) is disjunctive, we confine our analysis to determine

       whether the juvenile court committed clear error in concluding that the

       conditions that led to removal of Children would likely not be remedied. To do

       so, we first ascertain what conditions led to their removal and, second,

       determine if the juvenile court’s findings support its conclusion that those

       conditions would likely not be remedied. See K.T.K. v. Ind. Dep’t of Child Servs.,

       989 N.E.2d 1225, 1231 (Ind. 2013). In the second step, the juvenile court must

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

       evidence of changed conditions and balancing a parent’s recent improvements

       against “‘habitual pattern[s] of conduct to determine whether there is a

       substantial probability of future neglect or deprivation.’” E.M., 4 N.E.3d at 643

       (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule, “trial courts have

       properly considered evidence of a parent’s . . . criminal history, drug and

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

       adequate housing and employment.” In re D.B., 942 N.E.2d 867, 873 (Ind. Ct.

       App. 2011). When determining whether the conditions for the removal would



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020   Page 10 of 13
       be remedied, the juvenile court may consider the parent’s response to the offers

       of help. Id.


[19]   Here, a number of conditions led to the removal of Children, including

       Mother’s relapses into drug use. Tr. Vol. II at 31. Children were removed from

       Mother’s care on April 6, 2018 because she twice tested positive for

       methamphetamine. Id. at 75-76; Appellant’s App. Vol. II at 24. Children were

       removed also because Mother missed several appointments for drug screens.

       Appellant’s App. Vol. II at 23, 26, 96, 151, 154.


[20]   Mother contends DCS failed to show that there was a reasonable probability

       that Mother would not remedy these conditions. While she states that she

       attended “several” substance abuse programs, she does not contend that she

       fully complied with these programs. Appellant’s Br. at 17. Mother also states

       that she attended drug screens “occasionally,” and acknowledges that she

       missed thirty drug screens and tested positive for drugs on nine occasions. Id. at

       18. Mother also argues that her expressions of remorse about her drug use

       relapses also illustrate DCS’s failure to show there is a reasonable probability

       that Mother would not remedy the reasons for the removal of Children. In so

       arguing, Mother asks us to reweigh the evidence, which our standard of review

       does not allow. See E.M., 4 N.E.3d at 640-43; In re H.L., 915 N.E.2d at 149.


[21]   We find that the juvenile court’s findings support its conclusion that there was a

       reasonable probability that Mother would not remedy the conditions that led to

       the removal of Children. Its findings about Mother’s drug use, addiction to


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020   Page 11 of 13
       methamphetamine, failed drug tests, pending criminal charges, and failure to

       abide by rules of the housing programs were legally sufficient for the juvenile

       court to conclude that it was not reasonably probable that Mother would

       remedy the conditions that led to the removal of Children. See In re D.B., 942

       N.E.2d at 873; see also R.W., Sr. v. Marion Cty. Dep't of Child Servs., 892 N.E.2d

       239, 248 (Ind. Ct. App. 2008) (at the time of termination hearing,

       approximately three years had passed since the children were removed from the

       family home, yet Mother and Father still had not completed court-ordered

       services and there was no significant overall improvement of the conditions

       leading to removal).


[22]   Mother also contends the evidence does not support the juvenile court’s finding

       that termination of her parental rights is in the best interests of Children. In

       support, she contends that she was compliant with the terms and requirements

       for visitation and that she has a strong bond with Children. Once again,

       Mother asks us to reweigh the evidence, which we may not do. See E.M., 4

       N.E.3d at 640-43; In re H.L., 915 N.E.2d at 149.


[23]   In determining the best interests of a child, the juvenile court is required to look

       to the totality of the evidence. McBride v. Monroe Cty. Office of Family & Children,

       798 N.E.2d 185, 203 (Ind. Ct. App. 2003). The juvenile court must subordinate

       the interests of the parent to those of the children. Id. The juvenile court need

       not wait until the children are irreversibly harmed before terminating the

       parent-child relationship. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

       1158-59 (Ind. Ct. App. 2013), trans. denied. A parent’s drug abuse will support a

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020   Page 12 of 13
       trial court’s conclusion that terminating parental rights is in the best interest of a

       child. In re D.L., 814 N.E.2d 1022, 1030 (Ind. Ct. App. 2004), trans. denied.

       Likewise, the inability of a parent to provide a stable environment for a child

       the supports the trial court’s conclusion that termination of parental rights is in

       a child’s best interests. K.T.K., 989 N.E.2d at 1230. Here, the trial court made

       findings about Mother’s drug use and inability to provide a stable environment

       for Children, which provided adequate grounds for the trial court to conclude

       that it was in the best interests of Children to terminate Mother’s parental

       rights. See In re D.L., 814 N.E.2d at 1030; K.T.K., 989 N.E.2d at 1230 Finally,

       we observe that the statements of FCM Koehler and CASA Carmine were also

       clear and convincing evidence that termination of Mother’s parental rights was

       in the best interests of Children, even though the trial court did not expressly

       rely on those statements in its findings. See A.D.S., 987 N.E.2d at 1158–59

       (recommendations by case manager and 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 child's best interests). Accordingly, the trial court’s decision to

       terminate Mother’s parental rights was not clearly erroneous. See In re H.L., 915

       N.E.2d at 148-49.


[24]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2171| April 9, 2020   Page 13 of 13
