MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Nov 26 2019, 7:09 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 APPELLANTS                                  ATTORNEYS FOR APPELLEE
Jeffery Haupt                                            Curtis T. Hill, Jr.
Law Office of Jeffery Haupt                              Attorney General of Indiana
South Bend, Indiana                                      Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         November 26, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of: S.M., Minor Child,                                   19A-JT-1200
L.M., Mother,                                            Appeal from the St. Joseph Probate
                                                         Court
Appellant-Respondent,
                                                         The Honorable Jason Cichowicz,
        v.                                               Judge
                                                         The Honorable Graham Polando,
The Indiana Department of                                Magistrate
Child Services,                                          Trial Court Cause No.
                                                         71J01-1809-JT-132
Appellee-Petitioner.



Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019                 Page 1 of 12
[1]   L.M. (“Mother”) appeals the involuntary termination of her parental rights

      with respect to S.M. We affirm.


                                       Facts and Procedural History

[2]   S.M. was born on April 28, 2017, stayed in the hospital for approximately a

      month, and was placed in kinship care with S.B. and J.B., who also allowed

      Mother to stay in their home for a period of time. 1 On May 30, 2017, the

      Department of Child Services (“DCS”) filed a petition alleging S.M. was a child

      in need of services (“CHINS”) and incorporated a preliminary inquiry and

      investigation report stating: S.M. was born premature at twenty-nine weeks,

      tested positive for marijuana, and was removed on May 25, 2017; and Mother,

      who was “positive for marijuana at birth,” claimed to have drank and smoked

      marijuana while pregnant. Exhibits Volume at 7. In June 2017, Mother

      admitted to the material allegations. On September 18, 2017, the court issued a

      disposition order placing S.M. into relative placement and requiring Mother to

      keep the family case manager informed of changes of address or phone number,

      complete a parenting psychological assessment, continue with random drug

      screens and home-based therapy, sign all necessary release forms, see to S.M.’s

      medical and emotional needs, cooperate with service providers to secure a stable

      home environment, and follow all household rules while in the kinship house.




      1
        An August 18, 2017 addendum to the predispositional report indicates that S.B. and J.B. asked Mother to
      leave their home on August 15, 2017.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019              Page 2 of 12
[3]   On November 30, 2017, DCS filed a motion to modify dispositional decree

      and, following a December 18, 2017 hearing, the court suspended Mother’s

      parenting time. After a March 12, 2018 hearing at which Mother appeared, the

      court found her to be noncompliant and took the proposed permanency plan

      under advisement. On April 30, 2018, the court changed S.M.’s permanency

      plan to adoption.


[4]   On September 26, 2018, DCS filed a petition to terminate Mother’s parental

      rights. On March 19, 2019, the court held a termination hearing, and Family

      Case Manager Arielle Williams-Winston (“FCM Williams-Winston”) testified:

      Mother did not relate any changes in address or phone number and there was a

      period of no contact that lasted over a year; her psychosocial referral was

      cancelled after a missed initial appointment; at least three psychosocial referrals

      were never fulfilled; she completed drug screens in the beginning months of

      July and August 2017, was noncompliant afterwards, and DCS cancelled the

      referral. FCM Williams-Winston also stated that Mother never had a home of

      her own; her referral for a home-based case worker was cancelled due to lack of

      contact; and that she never engaged in the home-based therapy or visitations

      and the referrals for them were cancelled. She indicated that Mother refused to

      speak with her or the court appointed special advocate on numerous occasions,

      that two certified letters were returned as Mother did not live at the residence,

      and that she had three different phone numbers at one point for Mother. With

      regard to addressing S.M.’s medical and emotional needs, FCM Williams-

      Winston testified she understood the requirement to mean “basically providing


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019   Page 3 of 12
      care for the child and obviously staying up to date on all his medical needs and

      shot records just because of him also being born premature, there’s a lot of

      follow-up appointments.” Transcript at 15. She indicated a home-based case

      worker provided transportation services for Mother who did not attend or ask

      to attend any doctor appointments and that she did not have means of

      transportation to be able to provide for S.M.’s necessary appointments. She

      testified Mother last saw S.M. on the day after he was placed in relative

      placement and that, “just by observing the one . . . or two visitations that [she

      had] seen . . . there wasn’t very much interaction, not normal mother and child

      bonding.” Id. at 19. She testified that Mother was employed in late 2017 for

      “maybe a month” and in early 2018 at a Jimmy John’s, and indicated that DCS

      was still unsure of her employment status, source of income, and her housing

      situation. Id. at 17. During redirect examination, she indicated that at some

      point in the case there had been a putative father to S.M. in C., but the DNA

      test results were negative.


[5]   FCM Williams-Winston indicated that termination was in S.M.’s best interest

      and, when asked to explain why maintaining the parent-child relationship

      would threaten his well-being, answered that S.M. did not know Mother, had

      unattended medical needs when relative placement occurred, and had “to be

      monitored yearly for his issue that he has with his kidneys,” something that she

      thought Mother would not be able to do. Id. at 20. When describing S.M.’s

      adoptive home with his grandmother and great-grandmother, FCM Williams-




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019   Page 4 of 12
      Winston stated that he had progressed since placement, was active, and had

      bonded with great-grandmother.


[6]   Court Appointed Special Advocate Sharon LaPara (“CASA LaPara”) testified

      that she attempted to speak with Mother, who “kind of, never contacted me

      when I would try to call her, you know, there was no way, she didn’t answer, or

      her phone wasn’t working.” Id. at 32. When asked whether maintaining the

      parent-child relationship would threaten S.M.’s well-being, she answered

      “[a]bsolutely” and explained that she did not think Mother was capable of

      caring for him based on observations of her parenting skills, interest in visits,

      interest in communicating with DCS, and participation in court services. Id. at

      33. When asked about DCS’s plan for adoption, she stated that she believed

      “that would be the best thing that could ever happen to him.” Id. at 34.


[7]   Mother indicated that, after moving out of S.B. and J.B.’s home, she stayed with

      C. for approximately a year, with her Jimmy John’s boss for three months at

      some point in 2018 until “it just didn’t work out there,” and with somebody

      whom she had started dating. Id. at 40. She stated that she now resides with her

      friend C.H. and has been since October 2018. She answered in the negative

      when asked if she ever refused to talk to the case manager and stated that she

      would call her case manager at least once a week, “[b]ut it was usually a few

      times a week.” Id. at 42. She indicated that she did not have a car, that C.H. had

      one but “he works long hours, . . . he works nightshift job, so you know, when

      he’s awake, it’s you know,” that she was not working now, and that she was due



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019   Page 5 of 12
      to have a baby on April 15th and was attending Bella Vita classes from a

      pregnancy resource center in Knox. Id. at 44.


[8]   On May 15, 2019, the court terminated Mother’s rights and found that S.M. has

      never returned to Mother’s care, that he had been removed for over seventeen

      months at the time of the hearing, and that she largely failed to comply with the

      dispositional decree. It also found: Mother attempted to blame FCM Williams-

      Winston for the lack of communication, that FCM Williams-Winston “went

      above and beyond in attempting to maintain contact with Mother,” and that

      Mother largely failed to submit to random drug screens and failed to engage in

      provided assistance to secure a stable home environment until it “was eventually

      canceled by the agency.” Appellant’s Appendix Volume II at 51. Before finding

      that DCS had established that Mother will not remedy the conditions resulting in

      removal, it stated that


              [i]n short, Mother is in only a slightly better position now vis-a-
              vis the Child then she was at the time of his removal. She had
              been in her current home for approximately five months at the
              time of the evidentiary hearing, and, as the Department points
              out, is subject to the whim of yet another friend – whims that
              have proven disastrous for her housing situation on more than
              one occasion. She had not been employed for eight months.


      Id. at 52. In its “Best Interests and Satisfactory Plan,” the court concluded that

      Mother “is essentially a stranger” to S.M., “who, since this case began, has seen

      his CASA far more” than Mother, and described two episodes that served as




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019   Page 6 of 12
              poignant examples of Mother’s inability to prioritize the Child.
              In one, Mother declined to meet with the CASA so she could
              help the brother of the man she alleged to be the Child’s Father
              move. In another, when the previous [DCS FCM] actually
              attempted to pick Mother up to attend a visit, Mother declined to
              get into the car until she had finished her cigarette.

      Id. at 53. It found S.M. was “doing well in his current home, essentially the

      only home he has ever known, and certainly the most stable,” termination was

      in his best interest, and that adoption was satisfactory. Id.


                                                  Discussion

[9]   The issue is whether sufficient evidence supports the termination of Mother’s

      parental rights. In order to terminate a parent-child relationship, 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.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019   Page 7 of 12
       Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a). A finding in a proceeding to

       terminate parental rights must be based upon clear and convincing evidence.

       Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the

       credibility of witnesses, but consider only the evidence that supports the

       judgment and the reasonable inferences to be drawn from the evidence. In re

       E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps:

       whether the evidence clearly and convincingly supports the findings, and then

       whether the findings clearly and convincingly support the judgment. Id.

       Reviewing whether the evidence “clearly and convincingly” supports the

       findings, or the findings “clearly and convincingly” support the judgment, is not

       a license to reweigh the evidence. Id. Our review must give due regard to the

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

       not set aside its findings or judgment unless clearly erroneous. Id. “Because a

       case that seems close on a ‘dry record’ may have been much more clear-cut in

       person, we must be careful not to substitute our judgment for the trial court

       when reviewing the sufficiency of the evidence.” Id. at 640.


[10]   The involuntary termination statute is written in the disjunctive and requires

       proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).

       Because we find it to be dispositive under the facts of this case, we limit our

       review to whether DCS established that there was a reasonable probability that




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019   Page 8 of 12
       the conditions resulting in the removal or reasons for placement of S.M. outside

       the home will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).


[11]   Mother disputes the court’s general assessment that she is only in a slightly better

       position now then she was at the time of S.M.’s removal and argues that she has

       “accepted help, and in fact went and found services on her own . . . to improve

       her parenting skills.” Appellant’s Brief at 12. She concedes that she “did not

       have a good showing in the early stages of the CHINS case” and did not

       complete many of the requirements of the dispositional order regardless of her

       transportation or communication issues, but asks this Court to examine her life

       situation when the termination proceedings began and maintains that it is “in a

       much [more] secure and stable place than it has been in a while.” Id. at 8. With

       respect to the best interest of S.M., Mother contends that the court failed to

       account for her youth and the communication and transportation difficulties she

       “had during the time of the CHINS case” and argues that the passage of time

       from her suspension of parenting time to the termination hearing is insufficient to

       support the court’s conclusion that she is essentially a stranger to him. Id. at 13.


[12]   In determining whether the conditions that resulted in a child’s removal will not

       be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at 642-643.

       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. at 643. In the second step, the trial court must judge a parent’s

       fitness as of the time of the termination proceeding, taking into consideration

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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019   Page 9 of 12
       against habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. We entrust that delicate

       balance to the trial court, which has discretion to weigh a parent’s prior history

       more heavily than efforts made only shortly before termination. Id. Requiring

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

       from finding that a parent’s past behavior is the best predictor of future

       behavior. Id. The statute does not simply focus on the initial basis for a child’s

       removal for purposes of determining whether a parent’s rights should be

       terminated, but also those bases resulting in the continued placement outside

       the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may

       consider evidence of a parent’s history of neglect, failure to provide support,

       lack of adequate housing and employment, and the services offered by DCS and

       the parent’s response to those services. Id. Where there are only temporary

       improvements and the pattern of conduct shows no overall progress, the court

       might reasonably find that under the circumstances the problematic situation

       will not improve. Id.


[13]   To the extent Mother does not challenge certain findings of fact, the

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied.


[14]   The record reveals that S.M. was removed on May 25, 2017, and that Mother did

       not continue with drug screens or home-based therapy, cooperate with service

       providers to secure a stable home environment, or address S.M.’s medical and

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019   Page 10 of 12
       emotional needs. FCM Williams-Winston testified that Mother refused to speak

       with her or the special advocate on numerous occasions and they had no contact

       for over a year, and that Mother did not attend or ask to attend any doctor

       appointments despite the availability of transportation services. Mother testified

       to four separate housing arrangements since S.M.’s removal and indicated she

       was not currently employed and did not have reliable transportation. Based

       upon the record, we conclude that clear and convincing evidence supports the

       trial court’s determination that there is a reasonable probability that the

       conditions leading to S.M.’s removal will not be remedied.


[15]   In determining what is in the best interests of a child, the trial court is required

       to look beyond the factors identified by DCS and to the totality of the evidence.

       McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

       App. 2003). The court must subordinate the interests of the parent to those of

       the children. Id. Children have a paramount need for permanency which the

       Indiana Supreme Court has called a central consideration in determining the

       child’s best interests, and the Court has stated that children cannot wait

       indefinitely for their parents to work toward preservation or reunification, and

       courts need not wait until the child is irreversibly harmed such that the child’s

       physical, mental, and social development is permanently impaired before

       terminating the parent-child relationship. In re E.M., 4 N.E.3d at 647-648.

       However, focusing on permanency, standing alone, would impermissibly invert

       the best-interests inquiry. Id. at 648. Recommendations by both the case

       manager and the child advocate to terminate parental rights, in addition to


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019   Page 11 of 12
       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. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158-

       1159 (Ind. Ct. App. 2013), trans. denied.


[16]   Our review of the evidence reveals DCS has been involved with S.M. since the

       CHINS case began shortly after his birth. Mother does not dispute that she has

       not seen him since September 2017 or that he was never returned to her care.

       She also does not dispute, as the court found, her inability to prioritize him.

       FCM Williams-Winston testified that termination was in S.M.’s best interest,

       S.M. did not know Mother, and that she would not be able to provide for his

       medical needs. CASA LaPara testified that Mother was incapable of caring for

       S.M. and that adoption was best for him.


[17]   We find no error and affirm the termination of Mother’s parental rights.


[18]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019   Page 12 of 12
