MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be                                            Aug 27 2020, 9:23 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
Ana M. Quirk                                              Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana
                                                          Marjorie Lawyer-Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Termination of the                             August 27, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
L.C., F.T., and M.R. (Minor                               20A-JT-533
Children);                                                Appeal from the Delaware Circuit
S.C. (Mother),                                            Court
                                                          The Honorable Kimberly S.
Appellant-Respondent,
                                                          Dowling, Judge
        v.                                                The Honorable Amanda Yonally,
                                                          Juvenile Magistrate
                                                          Trial Court Cause Nos.
The Indiana Department of
                                                          18C02-1905-JT-112
Child Services,                                           18C02-1905-JT-113
Appellee-Petitioner.                                      18C02-1905-JT-114




Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020            Page 1 of 16
                                          Statement of the Case
[1]   S.C. (“Mother”) appeals the termination of the parent-child relationships with

      her daughters, L.C. (“L.C.”), F.T. (“F.T.”), and M.R (“M.R.”) (collectively

      “the children”). Mother argues that her due process rights were violated

      because the Department of Child Services (“DCS”) failed to make reasonable

      efforts to preserve the parent-child relationships and that there is insufficient

      evidence to support the terminations. Concluding that DCS did not violate

      Mother’s due process rights and that there is sufficient evidence to support the

      terminations, we affirm the trial court’s judgment.1


[2]   We affirm.


                                                        Issues
               1.       Whether Mother’s due process rights were violated
                        because DCS failed to make reasonable efforts to preserve
                        her parent-child relationships with the children.

               2.       Whether there is sufficient evidence to support the
                        termination of the parent-child relationships.

                                                        Facts
[3]   The facts most favorable to the termination reveal that Mother is the parent of

      L.C., who was born in July 2008; F.T., who was born in August 2011; and




      1
       L.C.’s father is deceased, and F.T.’s father’s parental rights were terminated in an unrelated proceeding.
      We affirmed the termination of M.R.’s father’s (“M.R.’s Father”) parental relationship with M.R. in a
      companion case handed down contemporaneously with this case. See In the Matter of the Involuntary
      Termination of the Parent-Child Relationship of M.R., Appellate Cause Number 20A-JT-510.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020                    Page 2 of 16
      M.R., who was born in February 2016. In February 2015, L.C. and F.T. were

      under the guardianship of maternal grandmother (“Maternal Grandmother”).

      In February 2016, the trial court adjudicated the two girls to be children in need

      of services (“CHINS”) because Maternal Grandmother was allowing Mother,

      who was using illegal drugs, to have unsupervised contact with the children in

      violation of the guardianship order. L.C. and F.T. were returned to Mother in

      March 2016, and the CHINS case was later closed.


[4]   Following L.C.’s and F.T.’s return to Mother and M.R.’s birth, Mother, M.R.’s

      Father, and the children lived with Maternal Grandmother at Maternal

      Grandmother’s house. DCS removed the children in October 2016 because of

      Mother’s and M.R.’s Father’s drug use. DCS placed the children in foster care.

      Mother admitted that she had been using morphine, heroin, pain medication

      and THC, and M.R.’s Father was using suboxone without a prescription. The

      trial court adjudicated the children to be CHINS in October 2016.


[5]   Mother, who had been unsuccessfully discharged from a Meridian Health

      Services (“Meridian”) outpatient substance abuse program in April 2016, began

      an inpatient detoxification and treatment program in November 2016. After

      she had successfully completed the program, DCS referred her to an intensive

      outpatient substance abuse program at Meridian in November 2016.


[6]   In March 2017, the trial court issued a CHINS dispositional order. The trial

      court’s order required Mother to: (1) participate in DCS-referred programs; (2)

      participate in substance abuse therapy; (3) successfully complete the addiction


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 3 of 16
      services recommended by Meridian; (4) attend visitation with the children; (5)

      abstain from the use of illegal substances; (6) submit to random drug screens;

      (7) maintain suitable, safe, and stable housing; and (8) secure and maintain a

      legal and stable source of income. The plan for Mother and the children was

      reunification.


[7]   After the trial court issued the dispositional order, Mother began attending the

      intensive outpatient program at Meridian. However, three weeks later, the

      outpatient program therapist removed Mother from the program because

      Mother had continued to use illegal substances.


[8]   Two months later, in May 2017, DCS referred Mother to individual substance

      abuse counseling and an intensive outpatient program, both at Centerstone

      (“Centerstone”). Mother sporadically participated in both programs until

      August 2018. During that time, Mother continued to use illegal substances.

      When other patients in the outpatient program reported that Mother was

      “trying to sell or share substances,” Mother was unsuccessfully discharged from

      the outpatient program. (Tr. Vol. 2 at 42). Although Mother’s therapist offered

      her the opportunity to continue in individual therapy, she chose not to return to

      Centerstone.


[9]   In early 2019, DCS referred Mother back to Meridian for substance abuse

      services, and Mother participated in another intensive outpatient program. In

      March 2019, Mother was suspended from the program because she was using




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 4 of 16
       methamphetamine. Mother did not attend a meeting to discuss reinstatement

       to the program and continued to test positive for methamphetamine.


[10]   In April 2019, the trial court issued an order “absolv[ing] [DCS] of any

       responsibility for providing any reunification services to [Mother].” (Tr. Vol. 2

       at 160). In May 2019, DCS filed a petition to terminate the parental

       relationships between Mother and the children.


[11]   The trial court held a two-day factfinding hearing in August and November

       2019. Testimony at the hearing detailed Mother’s history of substance abuse

       and her more than three-year history of failed attempts at substance abuse

       treatment. Between 2016 and August 2019, Mother had sixty-six positive drug

       screens for illegal substances, including positive screens for methamphetamine

       in June and July 2019 after DCS had filed the termination petition.


[12]   In addition, the testimony revealed that Mother had never progressed to

       unsupervised visitation with the children during the course of the proceedings.

       In early 2019, L.C. told the DCS case manager, the CASA, her therapist, and

       her foster parents that she no longer wanted to attend visits with Mother.

       Thereafter, L.C. was allowed to decide whether she would attend visits with

       Mother and she never attended another one. By May 2019, F.T. “was getting

       unstable and not wanting to go to visits [with Mother] anymore.” (Tr. Vol. 2 at

       98). During visits, F.T. was angry with Mother for using drugs. Neither F.T.

       nor M.R. wanted to hug or kiss Mother, and F.T. stated that she wanted to live

       with her foster parents. The visitation supervisor specifically described the


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 5 of 16
       relationship between F.T. and Mother as “broken.” (Tr. Vol. 2 at 96). During

       a June 2019 visit, the visitation supervisor suspected that Mother was under the

       influence of drugs and told the DCS family case manager about her suspicion.

       The DCS case manager asked Mother to take a drug test, which was positive

       for methamphetamine.


[13]   The testimony at the termination hearing also revealed that the children were

       thriving in foster care. Foster parents had taken the two oldest girls, eleven-

       year-old L.C. and eight-year-old F.T. to a mental health therapist without

       waiting for a referral from DCS. L.C. suffered from the trauma of Mother’s

       drug use and had memories of Mother choking her while Mother was

       intoxicated. F.T. scratched herself, had temper tantrums, bit her fingernails,

       and put her hands down her pants. The therapist was working with F.T. to

       develop healthy coping skills and to manage trauma triggers. The therapist

       observed that the interactions between the children and their foster parents were

       positive and that the foster parents were very supportive of the children. The

       therapist specifically testified that she had seen “nothing but good” with respect

       to the foster parents. (Tr. Vol. 2 at 31). The plan for the children was foster

       parent adoption.


[14]   At the second day of the termination hearing in November 2019, Mother

       testified that she had been living in a house with her former stepfather and had

       been working for the previous four months. She had a full-time job as a gas

       station attendant and a part-time job as a secretary. Mother had also been

       taking methadone for four months and participating in treatment at a

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 6 of 16
       methadone clinic. Additionally, Maternal Grandmother testified that it was not

       in the children’s best interests to terminate Mother’s parental rights.


[15]   In February 2020, the trial court issued three detailed orders terminating

       Mother’s parental relationships with the children. Mother now appeals the

       terminations.


                                                    Decision
[16]   Mother argues that her due process rights were violated because DCS failed to

       make reasonable efforts to preserve the parent-child relationships and that there

       is insufficient evidence to support the terminations. We address each of her

       contentions in turn.


       1. Reasonable Efforts and Due Process


[17]   Mother argues that DCS failed to make reasonable efforts to preserve the

       parent-child relationships, resulting in a violation of her due process rights.

       When DCS seeks to terminate parental rights, “it must do so in a manner that

       meets the prerequisites of due process.” In re J.K., 30 N.E.3d 695, 699 (Ind.

       2015) (quotations and citations omitted). Whether due process has been

       afforded in termination proceedings is determined by balancing the following

       “three distinct factors” specified in Mathews v. Eldridge, 424 U.S. 319, 335

       (1976): (1) the private interests affected by the proceeding; (2) the risk of error

       created by the State’s chosen procedure; and (3) the countervailing

       governmental interest supporting use of the challenged procedure. A.P. v. Porter


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 7 of 16
       Cnty. Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000),

       trans. denied.


[18]   In S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013)

       (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)), this Court further explained

       the Mathews factors as follows:


               The private interest affected by the proceeding is substantial – a
               parent’s interest in the care, custody, and control of his or her
               child. And the State’s interest in protecting the welfare of a child
               is also substantial. Because the State and the parent have
               substantial interests affected by the proceeding, we focus on the
               risk of error created by DCS’s actions and the trial court’s
               actions.


[19]   DCS must “make reasonable efforts to preserve and reunify families.” IND.

       CODE § 31-34-21-5.5(b). In addition, “due process protections at all stages of

       CHINS proceedings are vital because every CHINS proceeding has the

       potential to interfere with the rights of parents in the upbringing of their

       children.” In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (quotations and citations

       omitted). “[T]hese two proceedings - CHINS and TPR - are deeply and

       obviously intertwined to the extent that an error in the former may flow into

       and infect the latter[.]” Id.


[20]   However, the “failure to provide services does not serve as a basis on which to

       directly attack a termination order as contrary to law.” In re H.L., 915 N.E.2d

       145, 148 n.3 (Ind. Ct. App. 2009); see also In re E.E., 736 N.E.2d 791, 796 (Ind.

       Ct. App. 2000) (“[T]he provision of family services is not a requisite element of

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 8 of 16
       our parental rights termination statute, and thus, even a complete failure to

       provide services would not serve to negate a necessary element of the

       termination statue and require reversal.”). Further, a parent may not sit idly by

       without asserting a need or desire for services and then successfully argue that

       he or she was denied services to assist him or her with his or her parenting. In

       re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000).


[21]   Here, Mother appears to argue that DCS failed to make reasonable efforts to

       preserve the parent-child relationships because it did not provide her with any

       services after April 2019. As a preliminary matter, we note that the law is well

       established that a party on appeal may waive a constitutional claim. McBride v.

       Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 194 (Ind. Ct. App.

       2003). For example, in In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App.

       2001), this Court determined that a mother had waived her claim that the trial

       court had violated her due process rights because she raised the constitutional

       claim for the first time on appeal.


[22]   Mother in this case did not object to any alleged deficiencies in the CHINS

       process during the CHINS proceedings, nor did she argue during the

       termination proceedings that those alleged deficiencies constituted a due

       process violation. Rather, Mother has raised her due process claim for the first

       time on appeal. She has therefore waived appellate review of this issue. See id.


[23]   Waiver notwithstanding, our review of the record reveals that DCS offered

       Mother the following services for more than three years: (1) multiple substance


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 9 of 16
       abuse treatment referrals, including at least one referral to an inpatient

       treatment program and at least four referrals to outpatient treatment programs;

       (2) drug screens; and (3) supervised visitation with the children. DCS offered

       Mother these services with a plan for family reunification. Three years later,

       after Mother had failed to successfully complete the outpatient substance abuse

       treatment programs and had continued to test positive for illegal drugs, DCS

       stopped providing services to Mother and changed the plan for the children to

       foster parent adoption. DCS offered Mother sufficient services in its attempt to

       preserve and reunify Mother’s family. Based on the foregoing, Mother has not

       established that her due process rights were violated.2


       2. Sufficiency of the Evidence


[24]   Mother also argues that there is insufficient evidence to support the termination

       of her parental relationships with the children. The traditional right of parents

       to establish a home and raise their children is protected by the Fourteenth

       Amendment to the United States Constitution. In re J.W., Jr., 27 N.E.3d 1185,

       1187-88 (Ind. Ct. App. 2015), trans. denied. However, a trial court must




       2
         We further note that Mother has not established that DCS engaged in conduct that adversely affected her ability
       to participate in and complete services aimed at reunifying her with her daughters. Cf. In re T.W., 135 N.E.3d 607,
       618 (Ind Ct. App. 2019) (concluding that the “insufficient process employed in the CHINS case created a risk of the
       erroneous filing of a petition to terminate Father’s parental rights to [his child], in violation of Father’s due process
       rights.”), trans. denied; Matter of C.M.S.T., 111 N.E.3d 207, 213 (Ind. Ct. App. 2018) (concluding that “the chaotic
       and unprofessional handling” of a CHINS case violated the parents’ due process rights, requiring reversal of the
       termination order); A.P., 734 N.E.2d at 1117 (finding parents’ due process rights were violated in a termination
       proceeding where DCS made multiple procedural errors, such as failing to provide parents with copies of case plans
       and filing CHINS and termination petitions that did not meet statutory requirements).




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020                            Page 10 of 16
       subordinate the interests of the parents to those of the child when evaluating the

       circumstances surrounding a termination. Id. at 1188. Termination of the

       parent-child relationship is proper where a child’s emotional and physical

       development is threatened. Id. Although the right to raise one’s own child

       should not be terminated solely because there is a better home available for the

       child, parental rights may be terminated when a parent is unable or unwilling to

       meet his or her parental responsibilities. Id.


[25]   Before an involuntary termination of parental rights may occur, DCS is

       required to allege and prove, 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; and

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

       IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1230 (Ind. 2013).

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 11 of 16
[26]   When reviewing a termination of parental rights, this Court will not reweigh

       the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

       628 (Ind. 2016). We consider only the evidence and any reasonable inferences

       to be drawn therefrom that support the judgment and give due regard to the

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

       K.T.K., 989 N.E.2d at 1229.


[27]   We further note that, in determining whether to terminate a parent-child

       relationship, trial courts have discretion to weigh a parent’s prior history more

       heavily than efforts made only shortly before termination and may find that a

       parent’s past behavior is the best predictor of future behavior. D.B.M. v. Ind.

       Dep’t of Child Services, 20 N.E.3d 174, 181-82 (Ind. Ct. App. 2014), trans. denied.

       We have also stated that the time for a parent to rehabilitate himself or herself is

       during the CHINS process, before DCS files a termination petition. Prince v.

       Dep’t of Child Services, 861 N.E.2d 1223, 1230 (Ind. Ct. App. 2007).


[28]   In addition, as a general rule, appellate courts grant latitude and deference to

       trial courts in family law matters. Matter of D.P., 72 N.E.3d 976, 980 (Ind. Ct.

       App. 2017). “This deference recognizes a trial court’s unique ability to see the

       witnesses, observe their demeanor, and scrutinize their testimony, as opposed

       to this court[] only being able to review a cold transcript of the record.” Id.


[29]   Here, Mother first argues that DCS has failed to prove by clear and convincing

       evidence that: (1) there is a reasonable probability that the conditions that

       resulted in the children’s removal or the reasons for their placement outside the


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 12 of 16
       home will not be remedied; and (2) a continuation of the parent-child

       relationships poses a threat to the children’s well-being.


[30]   However, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010), trans. dismissed. We therefore discuss

       only whether there is a reasonable probability that the conditions that resulted

       in the children’s removal or the reasons for their placement outside the home

       will not be remedied.


[31]   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 then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires a trial court 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. Habitual conduct may include

       a parent’s prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

       trans. denied. The trial court may also consider services offered to the parent by

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 13 of 16
       DCS and the parent’s response to those services as evidence of whether

       conditions will be remedied. Id. Requiring a trial court to give due regard to

       changed conditions does not preclude them from finding that a parent’s past

       behavior is the best predictor of his or her future behavior. E.M., 4 N.E.3d at

       643.


[32]   Here, our review of the evidence reveals that the children were removed from

       Mother because of her drug use. During the three-year pendency of the CHINS

       proceedings, Mother was unsuccessfully discharged from at least four

       outpatient substance abuse treatment programs and continued to use drugs.

       After DCS filed the termination petition, Mother attended a supervised

       visitation with F.T. and M.R. while under the influence of methamphetamine.

       This evidence supports the trial court’s conclusion that there is a reasonable

       probability that the conditions that resulted in the child’s removal or the reasons

       for placement outside the home will not be remedied.


[33]   Mother also argues that DCS failed to prove by clear and convincing evidence

       that termination was in the children’s best interests. In determining whether

       termination of parental rights is in the best interests of a child, the trial court is

       required to look at the totality of the evidence. In re D.D., 804 N.E.2d 258, 267

       (Ind. Ct. App. 2004), trans. denied. In so doing, the court must subordinate the

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

       parent-child relationship is proper where the child’s emotional and physical

       development is threatened. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App.

       2002), trans. denied. The trial court need not wait until the child is irreversibly

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 14 of 16
       harmed such that her physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. In re E.S. 767 N.E.2d

       1287, 1290 (Ind. Ct. App. 2002). In addition, a child’s need for permanency is

       a central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009).


[34]   Here, the entirety of Mother’s argument on this issue is that “there was no

       evidence presented by DCS that the termination of the parent-child relationship

       was in the best interest of the minor children. [Maternal Grandmother] testified

       that it was not in their best interest to have the relationship terminated.”

       (Mother’s Br. 19). Mother has waived appellate review of this issue because she

       has failed to support it with cogent argument and relevant authority. See

       Kentucky Nat’l. Ins. Co. v. Empire Fire and Marine Ins. Co., 919 N.E.2d 565, 598

       (Ind. Ct. App. 2010) (holding that argument was waived for failure to cite

       authority or provide cogent argument).


[35]   Waiver notwithstanding, our review of the evidence reveals that the children

       have been thriving in their pre-adoptive foster home for three years, and the two

       oldest children no longer want to attend visitation with Mother. This evidence,

       as well as the other evidence previously discussed, supports the trial court’s

       conclusion that termination was in the children’s best interests.


[36]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 15 of 16
1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.


Affirmed.


Kirsch, J. and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 20A-JT-533 | August 27, 2020   Page 16 of 16
