MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                           Dec 20 2018, 7:48 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
J. Clayton Miller                                        Curtis T. Hill, Jr.
Jordan Law, LLC                                          Attorney General of Indiana
Richmond, Indiana
                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 20, 2018
of the Parent-Child Relationship                         Court of Appeals Case No.
of R.D., Minor Child,                                    18A-JT-1645
J.S., Mother,                                            Appeal from the Randolph Circuit
                                                         Court
Appellant-Respondent,
                                                         The Honorable Jay L. Toney,
        v.                                               Judge
                                                         Trial Court Cause No.
The Indiana Department of                                68C01-1705-JT-114
Child Services,
Appellee-Petitioner.



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018                Page 1 of 15
[1]   J.S. (“Mother”) appeals the involuntary termination of her parental rights with

      respect to R.D.1 We affirm.


                                        Facts and Procedural History

[2]   On May 10, 2017, the Indiana Department of Child Services (“DCS”) filed a

      petition for termination of Mother’s parental rights as to R.D., who was born

      on August 24, 2003. On January 31, 2018, and March 8, 2018, the court held

      an evidentiary hearing.


[3]   On June 18, 2018, the court entered an order terminating Mother’s parental

      rights as to R.D. which provides in part:


              5. Mother has a total of four (4) children, including [R.D.].

              6. In March, 2014, Mother entered into a Program of Informal
              Adjustment with the Department of Child Services in Randolph
              County, hereinafter referred to as “RCDCS”.

              7. Mother and her children had contact with RCDCS after
              Mother’s child, C.S., tested positive for opiates at birth on
              October 31, 2013.

              8. During the Program of Informal Adjustment, [R.D.], C.S.,
              and another sibling, B.D., were in Mother’s care, custody and
              control.

              9. During the Program of Informal Adjustment, Mother did not
              successfully complete a substance abuse treatment program.




      1
        R.D.’s father signed a Consent to Adoption for R.D. and does not appeal the termination of his parental
      rights as to R.D.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018               Page 2 of 15
        10. Mother was a patient at the methadone Treatment Center
        during some, or all, of the period of the Program of Informal
        Adjustment.

        11. Mother tested positive for heroin and Methadone on May 7,
        2014.

        12. Mother tested positive for heroin, cocaine and Methadone
        on May 21, 2014.

        13. On May 28, 2014, RCDCS received a report that [R.D.] got
        off of the school bus and there was no adult to pick her up and
        take her home.

        14. RCDCS Case Manager, Cassandra West (previously known
        as Cassandra Liss), addressed the report from May 28, 2014, and
        determined that Mother had not made arrangements for [R.D.]
        on that day.

        15. Based on Mother’s positive drug screens, the report
        regarding [R.D.] from May 28, 2014, and Mother’s general non–
        compliance with the requirements of the Program of Informal
        Adjustment, RCDCS filed a Verified Petition Alleging Child in
        Need of Services as to each of the children in Mother’s care.

        16. [R.D.] is the subject of a Child in Need of Services,
        hereinafter referred to as “CHINS”, case that was filed on June
        3, 2014, under Cause No. 68C01-1405-JC-000083 [(“Cause No.
        83”)], which cause remains an open case.

        17. [R.D.] and her two (2) siblings were removed from Mother’s
        care on or about June 2, 2014.

        18. A Detention and Initial Hearing was held on June 5, 2014, in
        [Cause No. 83], and it was ordered that Juvenile should continue
        outside of Mother’s care.

        19. [R.D.] has remained outside of Mother’s care since her initial
        removal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 3 of 15
        20. Mother’s two (2) other children that were removed at the
        same time as [R.D.], were never returned to Mother’s care, as
        they were reunified with their father and their CHINS cases were
        subsequently closed.

        21. Mother gave birth to a fourth child, S.S., on September 25,
        2016, and S.S.’s cord blood tested positive for opiates and
        Methadone at birth.

        22. S.S. was admitted to the Neonatal Intensive Care Unit after
        birth, where the child received treatment for withdrawal
        symptoms.

        23. Mother tested positive for opiates and Methadone during her
        pregnancy with S.S.

        24. Delaware County Department of Child Services filed a
        Verified Petition Alleging Child in Need of Services as to S.S., in
        November, 2016, under Cause No. 18C02-1611-JC-000335,
        which case remains an open case.

        25. Under [Cause No. 83], [R.D.] was found to be a Child in
        Need of Services on June 30, 2014, after Mother’s admission that
        Mother tested positive for heroin on May 7, 2014, and May 21,
        2014, during which times Mother had one or more children in
        her care.

        26. On August 4, 2014, an Order of Participation was filed in
        [Cause No. 83], in which Mother was ordered, among other
        things, to:

                a. Contact the FCM on a weekly basis via phone call, text
                message or letter.

                b. Notify the FCM of any changes to household
                composition within five (5) days of the change.

                c. Notify the FCM of any arrests or criminal charges
                within five (5) days.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 4 of 15
                d. Keep all appointments with service providers.

                e. Sign any releases needed to monitor compliance with
                Court orders.

                f. Maintain suitable, safe and stable housing.

                g. Not use, consume, manufacture, trade, distribute, or
                sell any illegal controlled substances, and will [sic] only
                take prescription medications for which a valid and current
                prescription exists.

        27. The permanency plan for [R.D.], in [Cause No. 83], began as
        Reunification.

        28. RCDCS Case Manager West was working with Mother
        toward reunification and testified that Mother progressed ruing
        [sic] the Fall of 2014 and continuing into the Summer of 2015.

        29. During the period of Mother’s progress, restrictions upon
        Mother’s visitation with [R.D.] were lifted and by June, 2015,
        RCDCS was granted authority to allow unsupervised visitation
        between Mother and [R.D.] to further the goal of reunification
        with Mother.

        30. On or about June 1, 2015, a Permanency Hearing was held,
        in [Cause No. 83] and a permanency plan of Reunification was
        ordered.

        31. On October 2, 2015, an Order Modifying Dispositional
        Decree and Modifying Visitation was filed in [Cause No. 83],
        granting RCDCS’ request, after RCDCS requested that Mother’s
        visitation return to being supervised as Mother had failed to
        submit to several drug screens when requested by DCS, and was
        consistently late in arriving for visits with [R.D.].

        32. A Review Hearing was held on October 26, 2015, in [Cause
        No. 83], and Mother’s visitations were ordered to remain
        supervised.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 5 of 15
        33. A Review Hearing was held on February 1, 2016, in [Cause
        No. 83], and [R.D.] was ordered to continue in out-of-home
        placement, and Mother’s visitations were ordered to remain
        supervised.

        34. A Permanency Hearing was held on April 26, 2016, in
        [Cause No. 83], and Mother failed to appear. The permanency
        plan was changed from reunification to guardianship.

        35. Between the Review Hearing held October 26, 2015, in
        [Cause No. 83], and the Permanency Hearing held April 26,
        2016, Mother’s level of participation in services and visitation
        decreased.

        36. In April, 2016, RCDCS reported that Mother had stopped
        contacting RCDCS on a regular basis.

        37. During 2016, there were several months in which RCDCS
        Case Manager West was not aware of Mother’s whereabouts,
        that Mother did not visit [R.D.], and did not submit to drug
        screens for RCDCS Case Manager West.

        38. When Mother re-connected with RCDCS Case Manager
        West, Mother was pregnant with S.S.

        39. A Review Hearing was held on August 25, 2016, in [Cause
        No. 83]. Mother’s visitation was ordered to remain supervised
        and Mother was again ordered to participate in drug treatment
        services and to cooperate with any drug screen requests.

        40. A Review Hearing was held on December 15, 2016, in
        [Cause No. 83], and Mother failed to appear. The Court found
        that Mother had chosen not to visit with [R.D.] for three (3)
        weeks prior, and that Mother had minimal contact with RCDCS
        since the prior hearing. The permanency plan was changed to
        adoption.

        41. A Review Hearing and a Permanency Hearing was held on
        March 30, 2017, and Mother failed to appear.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 6 of 15
        42. Mother failed to provide updated contact information to
        RCDCS for many months during 2017.

        43. Efforts to effect service of the Petition in this cause was
        delayed due to Mother’s failure to advise DCS of her
        whereabouts.

        44. Mother testified that during the early months of 2017, she
        continued to use illegal substances and abuse prescription
        substances.

        45. Mother testified that she went to Florida to live with her
        father in the late Spring or Summer of 2017, in order to detox.

        46. Mother testified that she took morphine pills with her to
        Florida when she went to detox.

        47. Mother testified that during her detox in Florida, she smoked
        marijuana and took Suboxone. Mother further testified that she
        had a prescription for the Suboxone from a doctor in Indiana, but
        also testified that she bought Suboxone “off the street”.

        48. RCDCS Case Manager Dawn Kunkler began working with
        [R.D.] in June, 2017, and at that time, RCDCS was not aware of
        Mother’s whereabouts.

        49. RCDCS Case Manager Kunkler made attempts to locate and
        contact Mother, including leaving voice and text messages on
        Mother’s cell phone.

        50. On August 25, 2017, RCDCS Case Manager Kunkler spoke
        with Mother and learned that Mother was in Florida.

        51. During the time Mother was in Florida, Mother did not visit
        [R.D.], and Mother’s services referred by RCDCS were all
        suspended due to Mother’s lack of contact.

        52. RCDCS Case Manager Kunkler first met Mother at a Court
        hearing, in [Cause No. 83], in December, 2017.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 7 of 15
        53. At the conclusion of evidence in this matter, Mother had not
        visited with [R.D.] for at least one (1) year.

        54. Mother has never successfully completed a substance abuse
        treatment program, but did participate in a Methadone treatment
        program for a period [of] time during the pendency of [Cause
        No. 83].

        55. During the period of time from June, 2014, through
        September, 2015, Mother submitted many drug screens which
        were only positive for Methadone, for which Mother did have a
        valid prescription.

        56. During the period of time from October, 2016, through May,
        2017, Mother submitted many drug screens which were positive
        for substances including Morphine, Fentanyl, Heroin, and
        Alprazolam (Xanax).

        57. After May, 2017, Mother did not submit to any drug screens
        until sometime in early[] 2018, after Mother returned from
        Florida.

        58. Since January, 2018, Mother has submitted two (2) positive
        drug screens, including one which was positive for Cocaine.

        59. Mother has made little to no progress during the pendency of
        [Cause No. 83].

        60. There is a reasonable probability that the conditions that
        resulted in [R.D.’s] removal and/or continued placement outside
        the home will not be remedied.

        61. There is a reasonable probability that the continuation of the
        parent/child relationship poses a threat to the well-being of
        [R.D.].

        62. Termination of the parent/child relationship is in the best
        interest of [R.D.].



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 8 of 15
              63. The Department of Child Services has a satisfactory plan for
              the care and treatment of [R.D.], which includes Adoption.

      Appellant’s Appendix Volume II at 40-45.


                                                  Discussion

[4]   The issue is whether the evidence is sufficient to support 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.

      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).




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 9 of 15
[5]   The State’s burden of proof for establishing the allegations in termination cases

      “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

      1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

      ‘heightened burden of proof’ reflecting termination’s ‘serious social

      consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

      904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

      heightened standard is the trial court’s prerogative—in contrast to our well-

      settled, highly deferential standard of review.” Id. 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. Id. 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.


[6]   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. “[W]e do not independently determine whether that

      heightened standard is met, as we would under the ‘constitutional harmless

      error standard,’ which requires the reviewing court itself to ‘be sufficiently

      confident to declare the error harmless beyond a reasonable doubt.’” Id.

      (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

      California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “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

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 10 of 15
      erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,

      989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “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.


[7]   Mother phrases the issue as and focuses her argument on whether DCS proved,

      by clear and convincing evidence, that termination is in the best interests of

      R.D. Mother does not specifically argue that the evidence does not support the

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

      conditions that resulted in R.D.’s removal and/or continued placement outside

      the home will not be remedied and that there is a reasonable probability that the

      continuation of the parent/child relationship poses a threat to the well-being of

      R.D. To the extent Mother does not challenge the court’s findings, these

      unchallenged facts stand as proven. See In re Involuntary Termination of Parent-

      Child Relationship of 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; McMaster v. McMaster, 681

      N.E.2d 744, 747 (Ind. Ct. App. 1997) (when the father failed to challenge

      specific findings, this Court accepted them as true).


[8]   Mother argues that the evidence does not support the court’s best-interests

      determination and contends that the court wholly ignored or disregarded

      significant contact between Mother and R.D. Mother also asserts that her

      efforts to maintain her relationship with R.D. demonstrate she is an interested

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 11 of 15
      and willing parent and contends that, even if this Court were to find a basis for

      the trial court’s findings, the findings “fall far short of the high clear and

      convincing evidence burden” which DCS is required to meet. Appellant’s Brief

      at 9. DCS maintains that the court’s conclusion that termination is in R.D.’s

      best interests is not clearly erroneous.


[9]   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). In so doing, 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. The testimony of a

      child’s guardian ad litem regarding the child’s need for permanency supports a

      finding that termination is in the child’s best interests. McBride, 798 N.E.2d at

      203. Recommendations by both the case manager and child advocate to

      terminate parental rights, in addition to evidence that the conditions resulting in

      removal will not be remedied, is sufficient to show by clear and convincing


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 12 of 15
       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.


[10]   The record reveals that home- and school-based therapist Karen Poling testified

       that R.D. has been involved with DCS for nearly four years, that “with all of us

       being in her life for a really long time . . . she’d like to be a typical teenager,”

       and that she would “like to go to school, she’d like to do sports and be involved

       in clubs, and . . . not have us in her life.” Transcript Volume II at 45. When

       asked whether she had concerns if R.D. “stays in this system, or with DCS

       involvement, for . . . an indefinite period of time,” Poling stated:


               I do. I am concerned that – that this – this – that – that part of
               progress – regardless of whether she’s gonna have feelings that
               she needs to share later about this process and about what
               happened, she needs to be finished, she needs to have a break,
               and then if those feeling[s] occur naturally, then that’s great, if
               they don’t, then she’s not that type of person that is gonna need
               to talk about all the things that have happened. And – but that’s
               not gonna happen now, in this setting.


       Id. at 46. In response to being asked “[w]hy not,” Poling indicated “[b]ecause

       she’s so guarded and so resistant, because she wants us to be out of her life, that

       she won’t participate in most cases.” Id. Family Case Manager Kunkler

       testified that DCS’s plan for R.D. was adoption and that it was in her best

       interests “[i]n regards to stability and permanency for this child, . . . and well-

       being. She presents as happy there, I’ve observed it. It’s where she – where I

       believe that she wishes to – for home to be and it’s . . . the most stable

       environment she’s had the last four years.” Id. at 125. Court Appointed

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 13 of 15
Special Advocate Andrea James (“CASA James”) testified that her

recommendation for the best interests of R.D. was adoption by R.D.’s relative

caregivers, which would involve the termination of Mother’s parental rights,

and that R.D.


        would like to be adopted by [relative caregivers]. Um, she would
        like to be able to contact her mom, on her terms, and she asks
        that she not have visits with Mom right now, um, but says at
        some point, she would like it – to have visits with her, on her
        terms. When we talk about this, she usually mentions how she’s
        very busy, um, with sports and school and friends, um, and that
        she doesn’t, um, want that to interfere.


Id. at 141. In response to the question of whether she had an opinion on behalf

of R.D. about “an impact on her if the case is . . . left to just linger indefinitely,”

CASA James stated:


        I do. Um, [R.D.], in the beginning, um, wouldn’t say a whole
        lot. She was kind of quiet and laid back. Over the last year, she
        tends to voice, often now, that she’s just tired of this. She doesn’t
        like being pulled out of class. She doesn’t like to feel different
        than the other kids in her grade. She wants to live a normal
        teenage life. Um, she tells us, often, that she wants us, me and
        the providers, she wants us gone. Um, she wants to be adopted
        and just wants this to be over with.


Id. at 141-142. When asked how R.D. was doing, she stated “Awesome. She’s

doing great. Um, she’s getting wonderful grades, um, which has been a huge

improvement for her.” Id. at 136. CASA James Further stated that R.D. was

involved in Student Council, sports, and 4-H. We observe further that the court


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 14 of 15
       found, and Mother does not challenge, that Mother submitted many drug

       screens from October 2016 through May 2017 which were positive for

       substances including Morphine, Fentanyl, Heroin, and Alprazolam (Xanax)

       and that Mother has submitted two positive drug screens, including one which

       was positive for Cocaine, since January 2018.


[11]   Based on the testimony, as well as the totality of the evidence in the record and

       set forth in the court’s termination order, we conclude that the court’s

       determination that termination is in the best interests of the Child is supported

       by clear and convincing evidence. See In re A.I., 825 N.E.2d 798, 811 (Ind. Ct.

       App. 2005) (concluding that testimony of child advocate and family case

       manager, coupled with evidence that conditions resulting in continued

       placement outside home will not be remedied, is sufficient to prove by clear and

       convincing evidence termination is in child’s best interests), trans. denied.


[12]   We conclude that the trial court did not err in terminating the parental rights of

       Mother.


[13]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1645 | December 20, 2018   Page 15 of 15
