MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                  Dec 13 2018, 9:26 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, K.N.                             ATTORNEYS FOR APPELLEE
Michael B. Troemel                                       Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
ATTORNEY FOR APPELLANT, R.O.                             Katherine A. Cornelius
                                                         Deputy Attorney General
Kyle D. Gobel
                                                         Indianapolis, Indiana
Collier Gobel, Homann, LLC
Crawfordsville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 13, 2018
of the Parent-Child Relationship                         Court of Appeals Case No.
of W.O.;                                                 18A-JT-1545
K.N. (Mother) and R.O.                                   Appeal from the Fountain Circuit
(Father),                                                Court
                                                         The Honorable Stephanie
Appellants-Respondents,
                                                         Campbell, Judge
        v.                                               Trial Court Cause No.
                                                         23C01-1711-JT-189
The Indiana Department of
Child Services,
Appellee-Petitioner.



Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018                  Page 1 of 10
                                       Statement of the Case
[1]   K.N. (“Mother”) and R.O. (“Father”) each appeal the termination of the

      parent-child relationship with their daughter, W.O. (“W.O.”), claiming that

      there is insufficient evidence to support the termination. Specifically, Mother

      and Father both argue that the Department of Child Services (“DCS”) failed to

      prove by clear and convincing evidence that: (1) there is a reasonable

      probability that the conditions that resulted in W.O.’s removal or the reasons

      for placement outside the home will not be remedied; and (2) a continuation of

      the parent-child relationship poses a threat to W.O.’s well-being. Both parents

      also argue that DCS failed to prove that termination of the parent-child

      relationships is in W.O.’s best interests. Concluding that there is sufficient

      evidence to support the termination of the parent-child relationships, we affirm

      the trial court’s judgment.


[2]   We affirm.


                                                     Issue
              The sole issue for our review is whether there is sufficient
              evidence to support the terminations.


                                                     Facts
[3]   W.O. was born in June 2010. When Mother was stopped for speeding in 2015,

      five-year-old W.O. was in the car. Police officers found marijuana and

      paraphernalia in the car and arrested Mother. A subsequent report to DCS

      revealed that Mother and W.O. had been living in the car and that Father was

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 2 of 10
      living in a tent by the river. W.O. was placed with paternal grandmother, and

      DCS filed a petition alleging that W.O. was a child in need of services

      (“CHINS”). Shortly after DCS filed this petition, Father was arrested and

      charged with possession of marijuana.


[4]   In September 2015, the trial court adjudicated W.O. to be a CHINS and

      ordered both parents to complete substance abuse and parenting assessments

      and follow all recommendations. The parents were also ordered to abstain

      from the use of illegal drugs and to obtain a stable source of income as well as

      suitable housing.


[5]   In March 2017, DCS allowed W.O. to return to Mother’s home for a trial

      placement. Father was only allowed supervised visitation because he had failed

      to comply with the court’s orders. Shortly after W.O.’s return to Mother’s

      home, Mother stopped participating in court-ordered programs and refused to

      allow DCS or the court-appointed special advocate (“CASA”) into her home to

      see W.O. In addition, Mother allowed Father to have unsupervised contact

      with W.O. After Mother tested positive for methamphetamine in July 2017,

      the trial court granted DCS’ petition for emergency custody and authorized

      DCS to take W.O. into protective custody.


[6]   In November 2017, DCS filed a petition to terminate the parental rights of both

      parents. At the February 2018 termination hearing, DCS Family Case

      Manager Angelina Brouillette (“FCM Brouillette”) testified that Mother had

      failed to submit to eight drug screens in September and October 2017 and had


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 3 of 10
      tested positive for methamphetamine and amphetamines in November 2017. In

      December 2017, Mother had refused to give a requested hair sample for a hair

      follicle drug test. FCM Brouillette testified that she was concerned about

      Mother’s continued drug use. According to the case manager, Mother had not

      “been making any progress towards remedying the situation that led to

      [W.O.’s] removal.” (Tr. 150).


[7]   Regarding Father, FCM Brouillette testified that Father had tested positive for

      Spice in September 2017. The case manager further testified that Father had

      also refused to submit to drug screens from the end of September 2017 until the

      end of October 2017. He, like Mother, had then tested positive for

      methamphetamine and amphetamines in November 2017. According to FCM

      Brouillette, W.O.’s parents have never acknowledged that they have substance

      abuse problems or that they need help for them.


[8]   FCM Brouillette further testified that termination was in W.O.’s best interest

      because neither parent had “made progress with the case plan.” (Tr. 157).

      According to FCM Brouillette, W.O. had been living with her paternal

      grandmother for over two years and had bonded with her. The plan was for

      grandmother to adopt W.O.


[9]   CASA Audrey Hayman (“CASA Hayman”) also testified that termination was

      in W.O.’s best interest because W.O. needed stability and permanency.

      Specifically, CASA Hayman explained as follows regarding W.O.: “She needs

      to be safe and she needs to be able to thrive in her environment and, again, we


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 4 of 10
       can’t - - we can’t hit a pause button on a child to wait for parents to get their act

       together.” (Tr. 226).


[10]   In June 2018, the trial court issued a thirteen-page order terminating both

       parents’ parental rights. Each parent separately appeals the terminations.


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

       protected by the Fourteenth Amendment to the United States Constitution. In

       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.

       However, a trial court must subordinate the interests of the parents to those of

       the child when evaluating the circumstances surrounding a termination. Id. at

       1188. Termination of the parent-child relationship is proper where a child’s

       emotional and physical development is threatened. Id. Although the right to

       raise one’s own child should not be terminated solely because there is a better

       home available for the child, parental rights may be terminated when a parent is

       unable or unwilling to meet his or her parental responsibilities. Id.


[12]   Before an involuntary termination of parental rights may occur, 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.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 5 of 10
                        (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). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1230 (Ind. 2013).


[13]   When reviewing a termination of parental rights, this Court will not reweigh

       the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

       628 (Ind. 2016). We consider only the evidence and any reasonable inferences

       to be drawn therefrom that support the judgment and give due regard to the

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

       K.T.K., 989 N.E.2d at 1229.


[14]   When the trial court’s judgment contains specific findings of fact and

       conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56

       N.E.3d at 628. First, we determine whether the evidence supports the findings,

       and second, we determine whether the findings support the judgment. Id. We

       will set aside a trial court’s judgment terminating a parent-child relationship

       only if it is clearly erroneous. Id. Findings are clearly erroneous only when the

       record contains no facts or inferences to be drawn therefrom that support them.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 6 of 10
       In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). A judgment is clearly

       erroneous if the findings do not support the trial court’s conclusions or the

       conclusions do not support the judgment. Id.


[15]   Mother and Father first argue that DCS failed to prove by clear and convincing

       evidence that: (1) there is a reasonable probability that the conditions that

       resulted in W.O.’s removal or the reasons for placement outside the home will

       not be remedied; and (2) a continuation of the parent-child relationship poses a

       threat to the W.O.’s well-being. However, we note that INDIANA CODE § 31-

       35-2-4(b)(2)(B) is written in the disjunctive. Therefore, DCS is required to

       establish by clear and convincing evidence only one of the three requirements of

       subsection (B). In re A.K., 924 N.E.3d 212, 220 (Ind. Ct. App. 2010), trans.

       dismissed. We therefore discuss only whether there is a reasonable probability

       that the conditions that resulted in W.O.’s removal or the reasons for her

       placement outside the home will not be remedied.


[16]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

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

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 7 of 10
       probability of future neglect or deprivation. Id. Habitual conduct may include

       a parent’s prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

       trans. denied. The trial court may also consider services offered to the parent by

       DCS and the parent’s response to those services as evidence of whether

       conditions will be remedied. 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 her future behavior. E.M., 4 N.E.3d at 643.


[17]   Here, our review of the evidence reveals that W.O. was removed from Mother

       because of Mother’s drug use and unstable housing. W.O. could not be placed

       with Father at that time because of his unstable housing and subsequent drug-

       related arrest. Although DCS allowed W.O. to return to Mother’ home for a

       trial placement in March 2017, shortly thereafter, Mother stopped participating

       in court-ordered programs and refused to allow DCS case managers or the

       CASA to see W.O. Mother also allowed Father, who was only allowed

       supervised visitation with W.O, to have unsupervised contact with his

       daughter. In July 2017, Mother tested positive for methamphetamine, and

       DCS removed W.O. from her home. Father tested positive for Spice in

       September 2017, and both Mother and Father refused to submit to drug screens

       from the end of September through the end of October. They both also tested

       positive for amphetamines and methamphetamine in November 2017, just three

       months before the termination hearing. Both parents have refused to


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 8 of 10
       acknowledge and treat the substance abuse problems that led to the removal of

       their daughter. This evidence supports the trial court’s conclusion that there

       was a reasonable probability that the conditions that resulted in W.O.’s removal

       would not be remedied. We find no error.


[18]   Next, Mother and Father both argue that there is insufficient evidence that the

       termination was in W.O.’s best interests. In determining whether termination

       of parental rights is in the best interests of a child, the trial court is required to

       look at the totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct.

       App. 2004), trans. denied. In so doing, the court must subordinate the interests

       of the parents to those of the child involved. Id. Termination of the parent-

       child relationship is proper where the child’s emotional and physical

       development is threatened. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App.

       2002), trans. denied. The trial court need not wait until the child is irreversibly

       harmed such that his physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. In addition, a child’s

       need for permanency is a central consideration in determining the child’s best

       interests. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony

       of the service providers may support a finding that termination is in the child’s

       best interests. McBride v. Monroe Cnty. Office of Family and Children, 798 N.E.2d

       185, 203 (Ind. Ct. App. 2003).


[19]   Here, our review of the evidence reveals that FCM Brouillette and CASA

       Hayman both testified that termination was in W.O.’s best interests because she

       needed stability and permanency. W.O. has lived with paternal grandmother

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 9 of 10
       for more than two years and has bonded with her. The plan is for paternal

       grandmother to adopt W.O., who should not have to wait any longer for her

       parents to acknowledge and seek treatment for their drug problems. The

       testimony of these service providers, as well as the other evidence previously

       discussed, supports the trial court’s conclusion that termination was in W.O.’s

       best interests.


[20]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[21]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 10 of 10
