MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                              Mar 26 2020, 10:02 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brooke L. Scheurich                                      Curtis T. Hill, Jr.
Rensselaer, Indiana                                      Attorney General of Indiana
                                                         Robert J. Henke
                                                         Natalie F. Weiss
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        March 26, 2020
Child Relationship of:                                   Court of Appeals Case No.
                                                         19A-JT-2499
E.W. and L.W. (Minor
Children),                                               Appeal from the Jasper Circuit
                                                         Court
And
                                                         The Honorable John D. Potter,
B.W. (Mother),                                           Judge
Appellant-Respondent,                                    Trial Court Cause No.
                                                         37C01-1907-JT-102 & 37C01-1907-
        v.                                               JT-103

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020                   Page 1 of 16
      Riley, Judge.


                                     STATEMENT OF THE CASE
[1]   Appellant-Respondent, B.W. (Mother), appeals the trial court’s termination of

      her parental rights to her minor children, E.W. and L.W. (Children).


[2]   We affirm.


                                                           ISSUE
[3]   Mother raises one issue on appeal, which we restate as follows: Whether the

      Department of Child Services (DCS) presented clear and convincing evidence

      supporting the termination of the parent-child relationship.


                          FACTS AND PROCEDURAL HISTORY
[4]   Mother and D.D. (Father) 1 are the biological parents to the Children, L.W.,

      born on May 11, 2016, and E.W., born on August 20, 2017. L.W. was initially

      adjudicated a Child in Need of Services (CHINS) prior to E.W.’s birth, in

      which Mother admitted to battling a drug addiction for eight years. On August

      21, 2017, both Children were removed from Mother’s care due to allegations of

      abuse and neglect after E.W. tested positive for narcotics at birth and Mother

      tested positive for methamphetamines. E.W. could not breath at birth and had

      to be intubated. On October 17, 2017, after Mother admitted the allegations of




      1
          Father voluntarily relinquished his parental rights and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020                     Page 2 of 16
      the CHINS petition, the trial court adjudicated Children as CHINS and

      instituted a parental participation order, ordering Mother to, among others:

      engage in programs and assessments as directed by the Family Case Manager

      (FCM) and keep all appointments; complete a substance abuse assessment and

      follow all treatment recommendations; submit to random drug and alcohol

      screens; and maintain a safe and stable house and secure employment.


[5]   On December 12, 2017, Mother entered inpatient care at the Women’s Bureau

      in Fort Wayne for a nine-month program of intensive drug treatment. While an

      inpatient, Mother had negative drug screens. She participated in visitation

      through Lifeline, and then started a trial home visit in April of 2018 in an

      apartment provided at the treatment facility, where Mother lived with the

      Children. On August 19, 2018, Mother discharged herself even though the

      program was not completed and moved to her grandmother’s home with the

      Children. DCS performed a drug screen on Mother after she checked herself

      out of the facility and it was negative. Shortly thereafter, Mother obtained

      housing in Fort Wayne through the Fort Wayne Housing Authority. On

      September 12, 2018, Mother tested positive for methamphetamine and on

      September 17, 2018, E.W. tested positive for methamphetamine. The trial

      home visit ended on September 17, 2018.


[6]   After the trial home visit with the Children ended, Mother commenced

      substance abuse services at Park Center. She received three referrals for

      assessment, and on February 1, 2019, Mother failed to appear. On April 15,

      2019, Mother completed her intake but failed to participate in any of the

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 3 of 16
      recommended services. DCS made two referrals for inpatient treatment;

      however, these referrals were closed after Mother failed to comply. Mother was

      also referred to Park Center for medication management but was non-

      compliant. DCS made two referrals for Mother for mental health assessments

      on October 18, 2018 and again in March of 2019. While Mother completed the

      assessments, she became non-compliant when referred for a psychological

      examination.


[7]   After the Children were removed on September 17, 2018, DCS re-started

      Mother’s drug screens. Of the drug screens at the Women’s Bureau, Park

      Center, and collected by DCS, Mother had 69 no-shows, 23 positive screens, 1

      refusal, and 68 negative screens. Mother’s 23 positive screens included positive

      results for methamphetamine, amphetamines, cocaine, heroin, morphine, and

      fentanyl. Her negative screens occurred mainly while she was an inpatient at

      the Women’s Bureau. Mother’s hair follicle screens were positive at 30, 60, and

      90 days for methamphetamine, except for the last hair follicle screen on March

      4, 2019, which was positive only at 60 and 90 days for methamphetamine.


[8]   On April 30, 2019, the FCM visited Mother. During this visit, Mother passed

      out, nodded off twice, and passed out again while signing a consent form for a

      drug screen. Mother appeared pale, had open sores, and showed a lot of weight

      loss since January 2019. Mother claimed not have used any drugs since the

      trial home visit ended in September 2018.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 4 of 16
[9]    DCS offered 62 visits with the Children of which Mother only attended 45.

       After the four-month trial home visit ended, DCS offered 43 visits. Mother

       attended 30, but during the period from April 11, 2019, through May 25, 2019,

       there were no visits as Mother failed to remain in contact with DCS for 6

       weeks.


[10]   On April 19, 2019, Mother was charged with possession of methamphetamine

       and syringe offenses. At the June 4, 2019, child and family team meeting,

       Mother admitted to being an addict but denied using all of the drugs that

       appeared in the drug screens. She claimed to not have used opiates for several

       years. Three days later, on June 7, 2019, a police officer stopped Mother for

       driving a car with her driving privileges suspended. After a methamphetamine

       pipe and pills were located in the car, Mother was charged with maintaining a

       common nuisance, possession of a legend drug, and paraphernalia.


[11]   On July 3, 2019, DCS filed its petition for termination of Mother’s parental

       rights. On September 6, 2019, Southlake Mental Health notified DCS that

       Mother had completed a fourteen-day inpatient program. On September 13,

       2019, the trial court conducted a factfinding hearing on DCS’s petition. At the

       time of the termination hearing, Mother had started participating in intensive

       outpatient program classes and Narcotics Anonymous meetings. On

       September 25, 2019, the trial court issued its Order, terminating Mother’s

       parental rights and concluding, in pertinent part:




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 5 of 16
        53. There is a bond between Mother and her [C]hildren.


        54. Mother knows she needs to get clean for herself, let alone her
        [C]hildren.


        55. Mother, although she appears to be on the right track at this
        eleventh hour, relies on different relatives for places to stay,
        transportation to treatment and classes and for all of her support.
        Mother is unable to support and take care of herself while she is
        currently pregnant, fighting for her sobriety and facing criminal
        charges in two counties.


        56. Mother’s claims of support from her family are more tangible
        at this time, as she can turn to her family for support instead of
        drugs; however, living with her family this past summer was
        when she was arrested in Lake County on felony drug charges.


        57. Continuation of the parent-child relationship poses a threat
        to the well-being of the [C]hildren.


        58. Mother, until the last few weeks before the termination, was
        testing positive for methamphetamine, fentanyl and other illegal
        narcotics.


        59. Mother has two separate felony criminal drug cases pending
        in two different counties—Lake and Noble.


        60. Visitation with Mother is going well, especially since the
        termination was filed, and the visitation supervisor recommends
        continued visitation.


        61. Mother recently started mental health counseling on her own
        and as of September 6, 2019, the [DCS] was notified by
        Southlake Mental Health that Mother had completed a fourteen-
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 6 of 16
        day inpatient program. Mother is still fighting and trying to treat
        her drug addiction problem.


        62. The recent eleventh-hour actions of Mother to attend N.A.,
        attend inpatient treatment at Southlake Mental Health with
        follow-up IOP care, attend visitations regularly, and
        communicate with her caseworker amount to “too little too late.”
        The record of counseling and treatment followed by serious
        prolonged relapses are a much more reliable prognostication of
        Mother’s behavior, which poses a threat to the [C]hildren’s well-
        being.


        63. Mother, except for this eleventh-hour attempt of self-
        treatment, has repeatedly denied or downplayed her drug use and
        addictions, which thwarted her recovery and sobriety.


        64. Mother’s use of fentanyl recently shows a danger to Mother’s
        safety and health per the Park Center counselor. Fentanyl is a
        very hard opiate that indicates addiction is increasing.


        65. There is a satisfactory plan of care and treatment for the
        [C]hildren. The [DCS] discussed adoption with Mother at the
        last two Child and Family Team Meetings. The current
        permanency plan was changed to adoption in July of 2019. The
        current placement with the pre-adoptive foster family is going
        very well for the [C]hildren.


        66. Termination is in the best interests of the [C]hildren. Mother
        has continued to use illegal substances, was offered IOP in the
        first case, inpatient in the second case, and IOP in the second
        case, without success. Now Mother has two pending criminal
        cases for drugs and Mother overdosed at work in April of 2019.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 7 of 16
               67. These two [C]hildren have had no permanency with Mother
               bouncing in and out of their lives between drug use relapses. Her
               recent ditch efforts, i.e., rehab and counseling, on her own do not
               outweigh the two years of conduct of Mother in this case.


       (Appellant’s App. Vol. II, pp. 193-95).


[12]   Mother now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[13]   Mother challenges the termination of her parental rights to her Child. The

       Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. Bester v.

       Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A

       parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v.

       Granville, 530 U.S. 57, 65 (2000)). However, parental rights “are not absolute

       and must be subordinated to the child’s interests in determining the proper

       disposition of a petition to terminate parental rights.” Id. If “parents are unable

       or unwilling to meet their parental responsibilities,” termination of parental

       rights is appropriate. Id. We recognize that the termination of a parent-child

       relationship is “an ‘extreme measure’ and should only be utilized as a ‘last

       resort when all other reasonable efforts to protect the integrity of the natural

       relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 8 of 16
       Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty.

       Office of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct. App. 2006)).


[14]   Indiana courts rely on a “deferential standard of review in cases concerning the

       termination of parental rights” due to the trial court’s “unique position to assess

       the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.

       dismissed. Our court neither reweighs evidence nor assesses the credibility of

       witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.

       2013). We consider only the evidence and any reasonable inferences that

       support the trial court’s judgment, and we accord deference to the trial court’s

       “opportunity to judge the credibility of the witnesses firsthand.” Id.


                                 II. Termination of Parental Rights Statute

[15]   In order to terminate a parent’s rights to his or her child, DCS must prove:


               (A) that one (1) of the following is true:

               (i) The child has been removed from the parent for at least six (6)
               months under a dispositional decree.
               ****
               (iii) The child has been removed from the parent and has been
               under the supervision of a local office . . . for at least fifteen (15)
               months of the most recent twenty-two (22) months, beginning
               with the date the child is removed from the home as a result of
               the child being alleged to be a [CHINS] . . . ;

               (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.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 9 of 16
                (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 [CHINS];

                (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 each of the foregoing elements by

       clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,

       92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the

       existence of a fact to be highly probable.” Id.


                                      A. Conditions which Led to Removal 2


[16]   Mother’s main claim is focused on the allegation that there is insufficient

       evidence to support the trial court’s determination that the conditions which

       resulted in the removal of the Children have not been remedied. It is well

       established that “[a] trial court must judge a parent’s fitness as of the time of the

       termination hearing and take into consideration evidence of changed

       conditions.” Stone v. Daviess Cnty. Div. of Children & Family Servs., 656 N.E.2d




       2
         Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, DCS is required to prove
       only one of three listed elements. See In re A.K., 924 N.E.2d at 220-21.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020                   Page 10 of 16
       824, 828 (Ind. Ct. App. 1995), trans. denied. In judging fitness, a trial court may

       properly consider, among other things, a parent’s substance abuse and lack of

       adequate housing and employment. McBride v. Monroe Co. OFC, 798 N.E.2d

       185, 199 (Ind. Ct. App. 2003). The trial court may also consider a parent’s

       failure to respond to services. Lang v. Starke Co. OFC, 861 N.E.2d 366, 372 (Ind.

       Ct. App. 2007), trans. denied. “[H]abitual patterns of conduct must be evaluated

       to determine whether there is a substantial probability of future neglect or

       deprivation.” Stone, 656 N.E.2d at 828. A trial court “need not wait until the

       children are irreversibly influenced by their deficient lifestyle such that their

       physical, mental and social growth is permanently impaired before terminating

       the parent-child relationship.” Id. Furthermore, “[c]lear and convincing

       evidence need not reveal that the continued custody of the parents is wholly

       inadequate for the child’s very survival. Rather, it is sufficient to show by clear

       and convincing evidence that the child’s emotional and physical development

       are threatened by the respondent parent’s custody.” K.T.K., 989 N.E.2d at

       1230.


[17]   In support of her argument that the conditions which resulted in the removal of

       the Children have been remedied, Mother refers to her voluntary inpatient

       enrollment at Southlake Mental Health and her participation in an intensive

       outpatient program after DCS filed its petition for termination of her parental

       rights.


[18]   A trial court is “within its discretion to disregard the efforts Mother made only

       shortly before termination and to weigh more heavily Mother’s history of

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 11 of 16
       conduct prior to those efforts.” K.T.K., 989 N.E.2d at 1234. “Requiring trial

       courts to give due regard to changed conditions does not preclude them from

       finding that parents’ past behavior is the best predictor of their future behavior.”

       In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Mindful of this guideline, we note

       that the evidence presented clearly and convincingly shows that a reasonable

       probability exists that the conditions that led to the Children’s removal from

       Mother’s care will not be remedied. Although Mother exhibited a recent

       turnaround in behavior the trial court was entitled to weigh the evidence as it

       found appropriate in the context of this case, and found that Mother’s prior

       conduct was more telling than the efforts she exerted prior to the termination

       hearing. We agree.


[19]   During the CHINS proceedings Mother used methamphetamine,

       amphetamines, cocaine, heroin, morphine, and recently, fentanyl. Of the drug

       screens collected at the Women’s Bureau, Park Center, and by DCS, Mother

       either failed to appear, tested positive, or refused to test for approximately 58

       percent of the tests. Mother’s most recent drug screen, on July 15, 2019, was

       positive for methamphetamine and fentanyl, signaling an increase in Mother’s

       drug abuse. Mother was recently charged with two drug-related offenses. Even

       during a home visit, the FCM observed Mother to be under the influence, as

       she passed out and nodded off. Even though Mother had a seemingly apparent

       period of sobriety while at the Women’s Bureau from December 12, 2017

       through August 19, 2018, the evidence actually indicates that Mother was using

       methamphetamine by June 2018 as Mother’s September 2018 hair follicle test


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 12 of 16
       tested positive for methamphetamine at the 90-day mark. DCS made two

       referrals for inpatient treatment; these referrals were closed due to Mother’s

       non-compliance. She was referred to Park Center for medication management,

       but was not compliant.


[20]   After the four-month trial home visit ended, DCS offered 43 supervised visits

       with the Children. Mother attended 30 visits but during the period from April

       11, 2019 through May 25, 2019, there were no visits as Mother had failed to

       remain in communication with DCS.


[21]   Mother now claims that the trial court should have taken into account the

       testimony of a therapist Mother worked with at Park Center. However, the trial

       court is not required to assess the same weight to the evidence as a party. See

       Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004). The trial court did not

       abuse its discretion in focusing on Mother’s eight-year history of substance

       abuse and failure to engage in treatment, rather than on Mother’s change in

       behavior after DCS filed its petition to terminate her parental rights. In re C.M.,

       675 N.E.2d 1134, 1140 (Ind. Ct. App. 1997) (explaining that “it [is] within the

       province of the trial court, as the finder of fact, to ignore or discredit . . .

       evidence” of remedial efforts made shortly before the termination hearing).

       Accordingly, when considered as a whole, we find the evidence sufficient to

       demonstrate a reasonable probability that the conditions which resulted in the

       removal of the Children would not be remedied.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 13 of 16
                                        B. Best Interests of the Children


[22]   Mother also challenges the trial court’s conclusion that termination is in the

       Children’s best interests. The premise of her argument focuses on the evidence

       that when visitation occurred, Mother’s visits with her Children went well. The

       visitation reports were favorable and she interacted appropriately with the

       Children. To determine whether termination is in a child’s best interests, the

       trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d

       1150, 1158 (Ind. Ct. App. 2013), trans. denied. The court must subordinate the

       interests of the parents to those of the child and need not wait until a child is

       irreversibly harmed before terminating the parent-child relationship. Id.


[23]   Here, Mother was addicted to drugs and exposed the Children to drugs in the

       past. In fact, E.W. tested positive for narcotics at birth, had to be intubated,

       and again tested positive on September 17, 2018. Mother has pending criminal

       charges and recently overdosed at work in April of 2019. FCM stated that

       Mother is “using more drugs, she’s showing that she’s using more drugs to still

       get that high, than we were looking at the beginning of the case.” (Transcript p.

       86). FCM testified that L.W. has been in his Mother’s care for thirteen months

       of his life, five months of which were the trial home visit, while E.W. has never

       been in Mother’s care without DCS supervision. Mother cannot fulfill her

       parental obligations and is not able to provide a stable environment for the

       Children. While the Children’s CASA testified that Mother is a very good

       parent and the Children are bonded with her, CASA recommended termination

       because “we’re now three years and . . . I don’t know in my own mind how

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 14 of 16
       long it would take to ever know thoroughly that we could know that she’s drug-

       free and be a safe situation for the” Children. (Tr. p. 128).


[24]   The FCM testified that the Children are thriving in their foster care placement

       and that foster parents are willing to adopt them. The Children are bonded and

       enjoy permanency; “[t]ermination, allowing for a subsequent adoption, would

       provide them with the opportunity to be adopted into a safe, stable, consistent,

       and permanent environment where all their needs will continue to be met, and

       where they can grow.” In re A.D.S., 987 N.E.2d at 1159.


[25]   Mother failed to avail herself of the opportunities and services offered by DCS

       to reunite with the Children and made no progress nor commitment during the

       proceedings of the case. While we are cognizant of the progress she made after

       DCS filed its petition for termination, it was too little, too late. We agree with

       the trial court’s assessment that “the record of counseling and treatment

       followed by serious prolonged relapses are a much more reliable

       prognostication of Mother’s behavior, which poses a threat to the [C]hildren’s

       well-being.” (Appellant’s App. Vol. II, p. 194). “[C]hildren cannot wait

       indefinitely for their parents to work toward preservation or reunification.” In

       re E.M., 4 N.E.3d 636, 648 (Ind. 2014). Even though “the ultimate purpose of

       the law is to protect the child, the parent-child relationship will give way when

       it is no longer in the child’s interest to maintain this relationship.” In re B.D.J.,

       728 N.E.2d 195, 200 (Ind. Ct. App. 2000).




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 15 of 16
[26]   Mother’s historical inability to provide a suitable environment for the Children,

       together with her current inability to do the same, supports the trial court’s

       conclusion that termination of her parental rights is in the best interests of the

       Children. Accordingly, we affirm the trial court’s decision.


                                             CONCLUSION
[27]   Based on the foregoing, we conclude that DCS presented clear and convincing

       evidence to support the trial court’s Order to terminate Mother’s parental rights

       to the Children.


[28]   Affirmed.


[29]   Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2499 | March 26, 2020   Page 16 of 16
