MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Oct 05 2018, 9:16 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Catherine S. Christoff                                    Curtis T. Hill, Jr.
Christoff & Christoff Attorneys                           Attorney General of Indiana
Fort Wayne, Indiana
                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          October 5, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of M.B. (Child) and C.B.                                  18A-JT-1111
(Mother);                                                 Appeal from the Allen Superior
C.B. (Mother),                                            Court
                                                          The Honorable Charles F. Pratt,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause No.
                                                          02D08-1706-JT-132
The Indiana Department of
Child Services,
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018                  Page 1 of 11
[1]   C.B. (“Mother”) appeals the involuntary termination of her parental rights to

      her child, M.B. (“Child”). Mother argues the trial court’s findings do not

      support its conclusions that the conditions under which Child was removed

      from Mother’s care would be remedied; that the continuation of the parent-

      child relationship posed a threat to Child; and that termination was in Child’s

      best interests. We affirm.



                                 Facts and Procedural History
[2]   Child was born on October 21, 2013, to Mother and J.S. (“Father”). 1 On

      August 5, 2015, the Department of Child Services (“DCS”) received a report

      that Mother and two of her other children 2 were living at a motel 3 with “only

      left over McDonald’s for food[,]” (Appellant’s App. Vol. II at 14); Mother

      dropped off another two of her children at the park “without supervision while

      [Mother] went to give plasma[,]” (id.); and Mother “was calling local homeless

      shelters because she, [and two other children,] were needing shelter.” (Id.) DCS

      investigated and found Mother tested positive for cocaine, Mother was engaged

      in an ongoing relationship marred by domestic violence with Father, 4 and




      1
          Father’s parental rights to Child were not terminated, and he does not participate in this appeal.
      2
          Child has six siblings who were also removed from Mother’s home. They are not subject to this appeal.
      3
        Child lived with paternal grandmother, and DCS formally placed Child with her following his removal
      from Mother’s care.
      4
          Father is the father of Child only. Child’s siblings have different fathers who are not subject to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018                          Page 2 of 11
      Mother was on probation after pleading guilty to Class C felony fraud on a

      financial institution.


[3]   The trial court issued a preliminary inquiry order on August 7, 2015,

      authorizing DCS to file a petition alleging Child was a Child in Need of

      Services (“CHINS”). The trial court held an initial hearing on the CHINS

      petition the same day.


[4]   On August 25, 2015, DCS filed an amended petition alleging Child was a

      CHINS. The trial court held another initial hearing on November 9, 2015, and

      adjudicated Child a CHINS based on Mother’s partial admission of the

      allegations. The trial court held a dispositional hearing the same day, and

      ordered Mother to, among other things, refrain from criminal activity; maintain

      consistent employment and appropriate housing; submit to a diagnostic

      assessment and follow all recommendations; obtain a drug and alcohol

      assessment and follow all recommendations; enroll in and successfully

      complete home-based services; obey the terms of her probation; refrain from the

      use of illegal substances and submit to random drug screens; and visit with

      Child. Child remained in paternal grandmother’s care until grandmother

      moved to Illinois, at which time Child was placed in foster care.


[5]   Soon after Child was removed from Mother’s care, Mother’s probation was

      revoked and she was ordered to serve the remainder of her two-year sentence in

      a work release program. Mother began work at the work release program on

      November 4, 2015. Mother initially complied with services. However, by


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018   Page 3 of 11
      January 2017, she had become noncompliant with some services and the

      permanency plan for Child changed from reunification to adoption. Soon

      thereafter, she began substance abuse treatment, which continued through June

      2017. Mother also attended therapy from April 2016 until August 30, 2017.

      Mother participated in supervised visitation with Child, which the Family Case

      Manager testified Mother attended “[e]ighty-five percent (85%) of the time.”

      (Tr. Vol. II at 151.) Mother remained drug-free throughout the proceedings.


[6]   On June 28, 2017, DCS filed a petition to terminate Mother’s parental rights to

      Child. Mother continued services and visited Child until she was released from

      work release on September 5, 2017. At that time, she ceased participation in

      services and told the Family Case Manager that she had moved to Detroit,

      Michigan, and that she “had no intention of returning to Fort Wayne.” (Id. at

      150.) The trial court held fact-finding hearings on the termination petition on

      January 16, 23, 24, and 25, 2018. Mother did not attend any of the fact-finding

      hearings. The trial court entered an order terminating Mother’s parental rights

      to Child on April 24, 2018.



                                 Discussion and Decision
[7]   We review termination of parental rights with great deference. In re K.S., 750

      N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

      credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004),

      trans. denied. Instead, we consider only the evidence and reasonable inferences

      most favorable to the judgment. Id. In deference to the juvenile court’s unique

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018   Page 4 of 11
      position to assess the evidence, we will set aside a judgment terminating a

      parent’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).


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

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

      re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

      subordinate the interests of the parents to those of the children, however, when

      evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

      at 837. The right to raise one’s own children should not be terminated solely

      because there is a better home available for the children, id., but parental rights

      may be terminated when a parent is unable or unwilling to meet parental

      responsibilities. Id. at 836.


[9]   To terminate a parent-child relationship, the State must allege and 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.


                       (iii) The child has, on two (2) separate occasions, been
                       adjudicated a child in need of services;

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018   Page 5 of 11
                (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). The State must provide clear and convincing proof

       of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

       denied. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[10]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

       evidence supports the findings and 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 juvenile court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208. 5


[11]   Mother challenges the trial court’s conclusions that the conditions under which

       Child was removed were not likely to be remedied and that continuation of the

       parent-child relationship posed a threat to Child’s well-being. As Indiana Code




       5
        Mother does not challenge the trial court’s findings, and thus we accept them as true. See Madlem v. Arko,
       592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the trial court, they
       must be accepted as correct.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018                  Page 6 of 11
       section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need only decide if

       the trial court’s conclusion supports one of these requirements. See In re L.S.,

       717 N.E.2d at 209 (because statute written in disjunctive, court needs to find

       only one requirement to terminate parental rights). Mother also argues

       termination is not in Child’s best interests.


                   Reasonable Probability Conditions Would Not Be Remedied

[12]   The trial court must judge a parent’s fitness to care for the child at the time of

       the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

       Evidence of a parent’s pattern of unwillingness or lack of commitment to

       address parenting issues and to cooperate with services “demonstrates the

       requisite reasonable probability” that the conditions will not change. Lang v.

       Starke Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.


[13]   When assessing a parent’s fitness to care for a child, the trial court should view

       the parents as of the time of the termination hearing and take into account the

       changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,

       854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also

       “evaluat[e] the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d

       509, 512 (Ind. Ct. App. 2001), trans. denied.


[14]   Regarding the reasonable probability that conditions would not be remedied,

       the trial court found and concluded, regarding Mother:


               [Findings of Fact]

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018   Page 7 of 11
                                              *****


        11. [Mother] was compliant with services while she remained in
        her work release program required as a result of a criminal
        conviction. However, after completing work release in
        September 2017, she discontinued her services.


        12. From the testimony of [Mother’s] therapist, Virginia Adams
        of the Bowen Center, the Court finds that [Mother] had been
        making progress in her individual counseling. However, there
        remained issues to be addressed before reunification could be
        recommended. [Mother] discontinued her therapy in August
        2017 before those goals could be achieved.


        13. From the testimony of Dr. Mary Johnson of the Bowen
        Center, the Court finds that [Mother] stopped participating in
        services designed to address her addictions in June, 2017.


        14. [Mother] has not visited [Child] since August, 2017.


                                              *****


        [Conclusions of Law]


                                              *****


        3. [Mother] did not supervise and provide for [Child] at the onset
        of the underlying CHINS case. She left [Child] on at least one
        instance without supervision. Notwithstanding the provision of
        services, she has left the community and has not seen or provided
        for [Child] since August, 2017. She has not demonstrated an
        ability to benefit from services nor has the reason for the removal
        of [Child] from her care been corrected. The court therefore finds


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018   Page 8 of 11
                and concludes that the Department has met its statutory burden
                with regard to [Mother].


       (Appellant’s App. at 121, 123.) Mother argues the trial court did not properly

       credit the testimony of Mother’s work release supervisor and Mother’s parental

       rights should not have been terminated because Father’s rights were not

       terminated despite Mother’s allegations that he did not complete certain

       services. 6


[15]   While Mother was initially compliant with services and continued compliance

       while completing work release, she abruptly stopped participating in services

       and visiting Child when her work release ended. She did not contact DCS on a

       regular basis thereafter, and when she did speak to DCS, she indicated she had

       moved out of state and had no intention of returning. Mother’s arguments are

       invitations for us to reweigh the evidence and judge the credibility of witnesses,

       which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot

       reweigh evidence or judge the credibility of witnesses). The trial court’s

       findings support its conclusion that the conditions under which Child was

       removed from Mother’s care would not be remedied. See In re J.C., 994 N.E.2d

       278, 289 (Ind. Ct. App. 2013) (termination of parental rights supported by




       6
         Despite Mother’s argument to the contrary, the termination of her parental rights is separate from the trial
       court’s decision regarding Father’s parental rights. See In re J.W., 779 N.E.2d 954, 959 (Ind. Ct. App. 2002)
       (upholding the termination of mother’s rights when father’s rights had not been similarly terminated), trans.
       denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018                    Page 9 of 11
       Mother’s continued noncompliance with services and inability to benefit from

       services provided), reh’g denied.


                                             Child’s Best Interests

[16]   In determining what is in Child’s best interests, a juvenile court is required to

       look beyond the factors identified by DCS and consider the totality of the

       evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.

       A parent’s historical inability to provide a suitable environment, along with the

       parent’s current inability to do so, supports finding termination of parental

       rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990

       (Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-

       appointed advocate to terminate parental rights, in addition to evidence that

       conditions resulting in removal will not be remedied, are sufficient to show by

       clear and convincing evidence that termination is in Child’s best interests. In re

       J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[17]   The trial court’s findings regarding Mother’s compliance with services and

       visitation are also applicable to the trial court’s conclusion regarding the best

       interests of Child. See supra. Here, regarding Child’s best interests, the trial

       court concluded, “given the abandonment of [Mother], the termination of her

       parental rights serves [Child’s] best interests.” (Appellant’s App. at 123.)

       Mother takes issue with the trial court’s characterization of her behavior as

       abandonment; however, we see no other way to classify Mother’s relocation

       out of state, cessation of services and visitation with Child, and expression that

       she did not intend to return to Fort Wayne, where Child was in foster care.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018   Page 10 of 11
       Mother’s arguments are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

       (appellate court cannot reweigh evidence or judge the credibility of witnesses).

       The trial court’s findings support its conclusion that termination of Mother’s

       parental rights was in Child’s best interests. See Matter of G.M., 71 N.E.3d 898,

       909 (Ind. Ct. App. 2017) (termination in Child’s best interests because Mother

       had not progressed in services and continued to be unable to care for Child).



                                                Conclusion
[18]   The trial court’s findings support its conclusion that the conditions under which

       Child was removed from Mother’s care would not be remedied and termination

       was in Child’s best interests. Accordingly, we affirm the termination of

       Mother’s parental rights to Child.


[19]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018   Page 11 of 11
