MEMORANDUM DECISION                                                            FILED
                                                                          May 24 2016, 7:51 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
regarded as precedent or cited before any                                       and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Christopher D. Kehler                                   Gregory F. Zoeller
Kehler Law Firm, PC                                     Attorney General of Indiana
Warsaw, Indiana
                                                        Robert J. Henke
                                                        Deputy Attorney General

                                                        David E. Corey
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                       May 24, 2016
Child Relationship of J.B.                              Court of Appeals Case No.
(Minor Child),                                          43A03-1509-JT-1520
A.C.,                                                   Appeal from the Kosciusko
                                                        Superior Court
Appellant-Respondent,
                                                        The Honorable David C. Cates,
        v.                                              Judge
                                                        Trial Court Cause No.
Indiana Department of Child                             43D01-1412-JT-413
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016                Page 1 of 15
      Najam, Judge.


                                             Statement of the Case
[1]   A.C. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor child, J.B. (“Child”). Mother raises two issues for our review,

      namely:


                 1. Whether the trial court abused its discretion in denying
                    Mother’s motion to continue the termination hearing.


                 2. Whether the trial court’s termination of Mother’s parental
                    rights was clearly erroneous.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Mother gave birth to Child on October 20, 2012.1 In November 2013, Indiana

      Department of Child Services (“DCS”) investigated a report that Mother was

      using methamphetamine. After Mother admitted that she was using

      methamphetamine, DCS filed a petition for an informal adjustment, which the

      trial court approved on December 18. Both Mother and Child tested positive

      for methamphetamine on January 4, 2014, and, on January 13, DCS filed a

      petition alleging Child was a child in need of services (“CHINS”) and obtained




      1
          Child’s father has not been identified but is alleged to be J.B., who does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016                    Page 2 of 15
      an emergency order from the trial court to remove Child from Mother’s care.

      On January 23, the trial court determined that Child was a CHINS.


[4]   On January 24, the State charged Mother with neglect of a dependent, as a

      Class D felony; possession of methamphetamine, as a Class D felony; and

      possession of paraphernalia, as a Class A misdemeanor. Mother was taken into

      custody while those charges were pending. She pleaded guilty to the two D

      felonies, and the State dismissed the misdemeanor charge. For each of the D

      felonies, the trial court sentenced Mother to two years’ incarceration, with

      credit for time served and the balance suspended to probation, and sentences to

      be served concurrently.


[5]   Following a dispositional hearing in February, the trial court ordered Mother

      to: maintain appropriate housing; maintain a legal source of income; submit to

      random drug screens; complete a substance abuse assessment and follow all

      recommendations; complete a parenting risk assessment and follow all

      recommendations; and visit Child.


[6]   On December 16, 2014, DCS filed a petition for the involuntary termination of

      Mother’s parental rights to Child. The trial court set the matter for an

      evidentiary hearing and Mother subsequently requested and was granted two

      continuances of that hearing. At the beginning of the June 15, 2015,

      evidentiary hearing, counsel for Mother requested another continuance of the

      hearing to give Mother more time to meet the DCS requirements of her. The

      trial court denied that motion and, following the hearing, the trial court entered


      Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 3 of 15
the following relevant findings and conclusions in support of terminating

Mother’s parental rights:


        9. The Child was removed from Mother’s home following both
        Mother’s failure to comply with an informal adjustment
        necessitated due to the Mother’s admission and positive test for
        methamphetamine, and both Child and Mother testing positive
        for methamphetamine and amphetamines. . . .

                                               ***

        11. Mother failed and refused to complete a parenting risk
        assessment despite referral from DCS.

        12. Mother completed a substance abuse assessment
        pursuant to DCS referral but failed and refused to comply
        with the rules of treatment and did not successfully
        complete a substance abuse program, being unsuccessfully
        discharged from her program.

        13. Mother failed to consistently submit to random drug screens
        and did not remain drug-free, having tested positive [for drugs]
        on at least four (4) occasions subsequent to entry of the Court’s
        Dispositional Order herein.

        14. Mother failed and refused to visit with the Child from
        and after October 2014.

        15. Mother has failed and refused to obtain and maintain
        stable drug-free housing nor has Mother secured a legal
        source of income.

        16. Mother was incarcerated subsequent to entry of
        Dispositional Order herein for Felony Neglect of a
        Dependent and Possession of Methamphetamine.


Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 4 of 15
        17. Mother was released from incarceration in May of 2014
        but returned to incarceration due to a probation violation
        cause[d] by a failed drug screen and her failure to complete
        substance abuse treatment.

        18. While incarcerated Mother attended AA/NA meetings
        and attended Mothers Against Meth meetings[] but failed to
        comply with the recommendations of the assessments to
        which she was previously directed.

        19. Due to Mother’s criminal offenses[,] she has been
        unable to develop and maintain a relationship with the
        Child, who has been removed from the care of Mother for
        more than one-half (1/2) of the Child’s life.

                                               ***

        24. Neither Child’s Mother nor the Child’s Alleged Father have
        been compliant with the Court’s Dispositional Order.

        25. Permanency is in the Child’s best interests and the Child
        needs permanency and stability for her well-being[,] which
        permanency and stability neither parent can provide.

        26. DCS has a satisfactory plan for the care and treatment of the
        Child and . . . for permanency and stability of the Child, namely,
        adoption.

        27. The Child has bonded with her current relative placement
        and removing the Child from that placement will be detrimental
        to the Child’s well-being and development.

        28. Current placement is ready, willing and able to adopt the
        Child if parental rights are terminated, which adoption is a
        satisfactory plan for the care and treatment of the Child.



Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 5 of 15
        29. Since initiation of DCS involvement with this family,
         . . . neither Mother nor Alleged Father have taken advantage of
        the services [offered by DCS].

                                               ***

        31. While the Child has been in the care of the current relative
        placement, the Child has made progress with regards to issues
        with which the Child had previously suffered, including, but not
        limited to, anxiety, inappropriate sexual behaviors, and
        inappropriate reactions to emotions.

        32. The Child is happy and content in her current placement and
        removal from that placement would be detrimental to the Child.

                                               ***

        37. The Child has been removed from her parent for at least six
        (6) months under a Dispositional Decree, and has been removed
        from her parent under the supervision of DCS for at least fifteen
        (15) of the most recent twenty-two (22) months beginning with
        the date the Child was removed from the home as a result of
        being a Child in Need of Services.

        38. There is a reasonable probability that conditions resulting in
        the Child’s removal for reasons of placement outside the home of
        the parents would not be remedied.

        39. There is a reasonable probability that the continuation of the
        parent/child relationship poses a threat to the well-being of the
        Child.

        40. Termination is in the best interests of the Child.

        41. There is a satisfactory plan for the care and treatment of the
        Child, namely, adoption.


Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 6 of 15
              IT IS THEREFORE ORDERED, ADJUDGED AND
              DECREED by this Court that:

              1. The parent/child relationship of the Child, . . . , and the
                 Child’s Mother, . . . , be and is hereby terminated.


      Appellant’s Amended Br. at 36-41. This appeal ensued.


                                    Discussion and Decision
                                    Issue One: Motion to Continue

[7]   First, Mother contends that the trial court erred in denying her motion to

      continue the June 15, 2015, fact finding hearing. The decision to grant or deny

      a motion for continuance is within the sound discretion of the trial court, and

      we will reverse only for an abuse of that discretion. C.C. v. v. Ind. Dep’t of Child

      Servs. (In re K.W.), 12 N.E.3d 241, 243-44 (Ind. 2014). An abuse of discretion

      occurs where the trial court reaches a conclusion that is clearly against the logic

      and effect of the facts or the reasonable and probable deductions that may be

      drawn therefrom. K.E. v. Ind. Dep’t of Child Servs. (In re J.E.), 45 N.E.3d 1243,

      1246 (Ind. Ct. App. 2015), trans. denied. A denial of a continuance is an abuse

      of discretion if the moving party has demonstrated good cause for granting the

      motion. Id.; see Ind. Trial Rule 53.5. However, no abuse of discretion will be

      found where the moving party has not shown prejudice from the denial of the

      continuance. In re J.E., 45 N.E.3d at 1246.


[8]   Here, Mother has failed to show good cause for granting the continuance. Her

      sole reason for requesting a continuance was that she wanted “additional time


      Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 7 of 15
      to meet the requirements set forth in the CHINS case so that she can avoid a

      termination.” Tr. at 6. However, Mother had already been given ample

      opportunity to comply with those requirements. At the time of Mother’s

      motion, the underlying CHINS case had been pending for approximately

      seventeen months, during which time Mother repeatedly failed to take

      advantage of services offered by DCS or comply with requirements imposed by

      DCS and the trial court. Moreover, Mother had already requested and been

      granted two prior continuances of the fact finding hearing. The trial court did

      not abuse its discretion in denying Mother’s third request for a continuance of

      that hearing.


                            Issue Two: Termination of Parental Rights

[9]   Mother also maintains that the trial court’s order terminating her parental rights

      was clearly erroneous. We begin our review of this issue by acknowledging that

      “[t]he traditional right of parents to establish a home and raise their children is

      protected by the Fourteenth Amendment of the United States Constitution.”

      Bailey v. Tippecanoe Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind.

      Ct. App. 1996), trans. denied. However, a trial court must subordinate the

      interests of the parents to those of the child when evaluating the circumstances

      surrounding a termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re

      K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a 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

      Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 8 of 15
       rights may be terminated when a parent is unable or unwilling to meet his or

       her parental responsibilities. Id. at 836.


[10]   Before an involuntary termination of parental rights can occur in Indiana, 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) [and] that termination is in the best interests of the child . . . .


       Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements

       of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.

       DCS’s “burden of proof in termination of parental rights cases is one of ‘clear

       and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904

       N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).




       Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 9 of 15
[11]   When reviewing a termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

       Family & Children (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 that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

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

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

       Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

       (Ind. Ct. App. 1999). trans. denied.


[12]   Here, in terminating Mother’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cnty. Ofc. 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). If the evidence and inferences support the trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[13]   Mother contends that the trial court erred in both its findings of fact and its

       conclusions of law. As to the latter, she alleges that the trial court erred in

       concluding that she will not remedy the conditions that resulted in Child’s

       removal; that the continuation of the parent-child relationship poses a threat to

       Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 10 of 15
       the well-being of Child; and that termination is in the best interest of Child.

       Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive,

       we only address whether the trial court erred in concluding that Mother will not

       remedy the conditions that resulted in Child’s removal and that termination is

       in Child’s best interest. We address each of Mother’s contentions after we

       briefly address her challenge to specific findings of fact entered by the trial

       court.


                                        Trial Court’s Findings of Fact

[14]   First, Mother contends that the evidence did not support the trial court’s

       following findings of fact: Findings 14, 18, 25, and 27. Findings of Fact 25 and

       27 are supported by the evidence,2 and Mother’s assertions to the contrary are

       simply requests that we reweigh the evidence, which we will not do. And, even

       assuming Findings of Fact 14 and 18 are clearly erroneous, the decision of the

       trial court is supported by the remainder of the findings, as noted below, and

       the portions challenged by Mother may be treated as surplusage. Lasater v.

       Lasater, 809 N.E.2d 380, 397 (Ind. Ct. App. 2004). Moreover, Mother has

       shown no prejudice from Findings 14 and 18 that would warrant reversal of the

       court’s judgment on appeal. Id.




       2
          Mother asserts there is no evidence that Child lacked permanency, as noted in Finding 25; however, there
       is sufficient evidence that Mother’s consistent drug use resulted in Child being removed from her home and
       put into various foster placements over a significant period of time. There is also sufficient evidence that
       Child was happy and stable in her current relative placement such that removal from the placement would be
       harmful, as stated in Finding 27.

       Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016            Page 11 of 15
                             Conditions that Resulted in Child’s Removal

[15]   Mother maintains that the trial court erred in finding a reasonable probability

       that the conditions that resulted in Child’s removal will not be remedied. In

       making this determination, we engage in a two-step analysis. E.M. v. Ind. Dep’t

       of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). “First, we identify the

       conditions that led to removal; and second, we determine whether there is a

       reasonable probability that those conditions will not be remedied. Id.

       (quotations and citations omitted). In the second step, the trial court must

       judge a parent’s fitness to care for his or her children at the time of the

       termination hearing, taking into consideration evidence of changed conditions.

       Id. However, the court must also “evaluate the parent’s habitual patterns of

       conduct to determine the probability of future neglect or deprivation of the

       child.” Moore v. Jasper Cnty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct.

       App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

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

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

       adequate housing and employment. Id. Moreover, DCS is not required to rule

       out all possibilities of change; rather, it need establish only that there is a

       reasonable probability the parent’s behavior will not change. Id.


[16]   Here, the evidence showed that, initially, an informal adjustment was necessary

       due to Mother admitting to taking, and testing positive for, methamphetamine

       and amphetamines. The evidence shows that Mother subsequently failed to

       comply with the informal adjustment not only by testing positive for

       Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 12 of 15
       methamphetamine herself but also by Child testing positive for that drug.

       Mother’s failure to comply resulted in the Child’s removal from Mother’s

       home, the filing of a CHINS action and criminal charges against her, and her

       subsequent incarceration for felony neglect of Child and possession of

       methamphetamine. Yet, upon Mother’s release from incarceration, she again

       failed to remain drug-free. In violation of her probation, she once again tested

       positive for drugs and failed to complete substance abuse treatment, resulting in

       her return to jail.


[17]   Mother’s history of drug abuse and consistent failure to remain drug-free, along

       with other evidence of her consistent failure to comply with DCS requirements

       both in the informal adjustment and the CHINS case, support the trial court’s

       conclusion that the conditions that resulted in Child’s removal will not be

       remedied. On appeal, Mother points to evidence tending to show that she has

       taken steps in the right direction during her most recent incarceration.

       However, the trial court was entitled to give more weight to evidence of how

       Mother behaved when she was not incarcerated than to evidence of how she

       behaved while she was restricted by the realities of incarceration. See, e.g., R.K.

       v. Ind. Dep’t of Child Servs. (In re S.E.), 15 N.E.3d 37, 46 (Ind. Ct. App. 2014)

       (quoting In re E.M., 4 N.E.3d at 643), trans. denied. Mother’s contentions on

       appeal amount to a request that we reweigh the evidence, which we will not do.

       The trial court did not err in concluding that the conditions at the time of

       Child’s removal will not be remedied.




       Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 13 of 15
                                                 Best Interests

[18]   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. A.S. v.

       Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and

       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       interests.” Castro v. State Ofc. of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct.

       App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in

       the child’s best interests.” In re A.K., 924 N.E.2d at 224. Such evidence, “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.” L.S. v. Ind. Dep’t of Child Servs. (In re

       A.D.S.), 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.


[19]   Again, Mother’s contentions on this issue amount to requests that we reweigh

       the evidence, which we will not do. Both Lindsay Saylor, a DCS family case

       manager, and Shannon Johnson, Child’s Court Appointed Special Advocate

       (“CASA”), testified that termination of Mother’s parental rights is in Child’s

       best interest. Given that testimony, in addition to evidence that Child needs

       permanency and stability that Mother cannot provide and that the reasons for

       Child’s removal from Mother will not be remedied, we hold that the totality of

       Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 14 of 15
       the evidence supports the trial court’s conclusion that termination is in Child’s

       best interest. The trial court did not err when it terminated Mother’s parental

       rights to Child.


[20]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016   Page 15 of 15
