MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Oct 24 2019, 9:27 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Renee M. Ortega                                           Curtis T. Hill, Jr.
Lake County Juvenile Public                               Attorney General
Defender’s Office
                                                          Benjamin M. L. Jones
Crown Point, Indiana                                      Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              October 24, 2019
Parent-Child Relationship of                              Court of Appeals Case No.
M.R. and L.R. (Minor Children)                            19A-JT-992
and L.R. (Mother)                                         Appeal from the
L.R. (Mother),                                            Lake Superior Court
                                                          The Honorable
Appellant-Respondent,
                                                          Thomas P. Stefaniak, Jr., Judge
        v.                                                Trial Court Cause Nos.
                                                          45D06-1811-JT-341
                                                          45D06-1811-JT-342
Indiana Department of Child
Services,
Appellee-Petitioner



Vaidik, Chief Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019                    Page 1 of 10
                                            Case Summary
[1]   L.R. (“Mother”) appeals the termination of her parental rights to two of her

      three children. We affirm.



                             Facts and Procedural History
[2]   Mother is the biological parent of three children: M.R., born in 2004, S.R., born

      in 2006, and L.R., born in 2010. The facts that follow are taken primarily from

      the trial court’s findings of fact, none of which Mother challenges on appeal. 1


[3]   In September 2012, Mother, M.R., S.R., and L.R. lived with E.R., biological

      father to L.R. and stepfather to M.R. and S.R. (hereafter, “Stepfather”). On

      September 13, the Department of Child Services (DCS) received a report that

      M.R. and S.R. were being sexually abused by Stepfather. Mother kicked

      Stepfather out of the house and sought a no-contact order against him. Later,

      she divorced Stepfather. DCS filed petitions alleging that M.R. and S.R. were

      children in need of services (CHINS) due to the allegations of sexual abuse by

      Stepfather. DCS did not remove M.R. and S.R. from Mother’s care but

      recommended that Stepfather not enter Mother’s house and have no contact

      with M.R. and S.R. At the initial hearing, Mother admitted the allegations in

      the CHINS petition regarding Stepfather’s sexual abuse of M.R. and S.R. The




      1
       Because Mother does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v.
      Arko, 592 N.E.2d 686, 687 (Ind. 1992).

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019                  Page 2 of 10
      trial court found that M.R. and S.R. were CHINS and ordered that Mother,

      M.R., and S.R. participate in counseling, clinical assessments, and home-based

      caseworker services.


[4]   About two weeks later, on September 28, DCS received a report that there were

      “a lot of people” coming and going from Mother’s house, that the house was

      being used for drug dealing, that the house and children were filthy, and that

      there was “not a lot of food” in the house. Ex. H. That same day, DCS

      removed M.R., S.R., and L.R. from Mother’s care and placed them at

      Carmelite Home for Children. Thereafter, DCS filed a CHINS petition

      regarding L.R., alleging that Mother’s house and L.R. were filthy, that there

      were lots of people coming and going from the house, and that suspected drug

      dealing was taking place. Mother admitted the allegations of the CHINS

      petition, and the trial court adjudicated L.R. a CHINS. The trial court also

      ordered that M.R., S.R., and L.R. continue in their placement at Carmelite

      Home.


[5]   In October 2012, following a dispositional hearing, the court ordered that

      Mother participate in services, including a substance-abuse assessment, drug

      and alcohol screens, individual and family counseling, a clinical assessment,

      and supervised visitation. In the beginning, Mother participated in some

      services but then over the next six years, her participation became sporadic. At

      the 2013 review hearings, the trial court found that Mother was not complying

      with services and was still testing positive for marijuana but that she was

      receiving treatment for her drug addiction at Transitions. See Ex. O. At the

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019   Page 3 of 10
2014 review hearings, the trial court found that Mother had checked herself out

of treatment at Transitions, missed a group therapy session, and continued to

test positive for marijuana. See Ex. W. At the March 2015 review hearing, the

trial court found that Mother had begun engaging in some services but was

inconsistent with drug screens. See Ex. OO. By the June 2015 review hearing,

the trial court found that Mother had become inconsistent with services and

that most of her drug screens were positive. See Ex. QQ. A year later, in May

2016, Mother had reengaged in some services but remained inconsistent with

drug screens. See Ex. VV. In August 2016, Mother tested positive for alcohol,

and in October 2016, she tested positive for cocaine. See Ex. BBB. In March

and April 2017, Mother tested positive for marijuana, and in June 2017 she was

evicted from her subsidized housing for not paying rent. See Exs. III, LLL. At

the December 2017 review hearing, Mother failed to appear, and DCS reported

that Mother had not participated in services since September 2017 and that

DCS had been unable to contact her. See Exs. NNN, OOO. In February 2018,

Mother contacted DCS and told them that she had just returned to Indiana

from living in Iowa for the past four months. Mother did not inform DCS that

she was moving to Iowa before doing so. Throughout the remainder of 2018,

Mother continued to be non-compliant with services and tested positive for

marijuana. See Ex. RRR. Meanwhile, M.R., S.R., and L.R. remained placed

at Carmelite Home for Children from September 2012 until October 2014,

when they were placed in a pre-adoptive foster home.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019   Page 4 of 10
[6]   In November 2018, DCS filed petitions to terminate Mother’s parental rights as

      to M.R. and L.R. (collectively, “Children”). A termination petition was not

      filed regarding S.R. because DCS had not located a pre-adoptive home for her.

      In December 2018, S.R. was separated into a different foster placement than

      her siblings due to some behavioral issues she was having.


[7]   A fact-finding hearing on the termination petitions was held in March 2019.

      Family Case Manager (FCM) Shani Brown testified that in the year she was

      assigned to the case, Mother completed some, but not all, services ordered by

      the court. Tr. p. 12. FCM Teresa Abell testified that she was the family’s case

      manager for almost two years and that during that time Mother moved to Iowa

      for four months without informing DCS. Id. at 16. FCM Abell said that since

      Mother returned from Iowa in February 2018, “she never consistently

      participated in her services.” Id. at 18. FCM Abell recommended that

      Mother’s parental rights be terminated and that Children be available for

      adoption. Id. at 22. FCM Abell said that Children had been placed in their pre-

      adoptive foster home for “over four years” and that allowing them to be

      adopted “will allow [Children] to have permanency and achieve stability in

      their lives.” Id. Harold Barnwell, M.R.’s homebased caseworker, testified that

      he had been working with M.R. for over two years on “emotional behavior

      modification, interaction skills, honesty,” and that since M.R. had been placed

      in the pre-adoptive foster home his maturity level has improved and he stopped

      lying. Id. at 43. Barnwell said that he agreed with termination of Mother’s

      parental rights because he did not want to see M.R. regress. See id. at 44-45.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019   Page 5 of 10
       Mother testified that she had “been smoking marijuana since [she] was sixteen”

       and has “PTSD, depression and anxiety.” Id. at 36. In April 2019, the court

       issued its order terminating Mother’s parental rights.


[8]    Mother now appeals.



                                  Discussion and Decision
[9]    When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.

       2013). Rather, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment of the trial court. Id. When a trial court has

       entered findings of fact and conclusions of law, we will not set aside the trial

       court’s findings or judgment unless clearly erroneous. Id. To determine

       whether a judgment terminating parental rights is clearly erroneous, we review

       whether the evidence supports the trial court’s findings and whether the

       findings support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[10]   A petition to terminate parental rights must allege, 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 19A-JT-992 | October 24, 2019   Page 6 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. In re K.T.K., 989 N.E.2d at 1231. If the court

       finds that the allegations in a petition are true, the court shall terminate the

       parent-child relationship. Ind. Code § 31-35-2-8(a).


[11]   Mother first argues there is insufficient evidence to support the trial court’s

       conclusion that the conditions resulting in Children’s removal will not be

       remedied. In determining whether the conditions that resulted in a child’s

       removal will not be remedied, the trial court engages in a two-step analysis.

       “The court first identifies the conditions that led to removal and then

       determines whether there is a reasonable probability that those conditions will

       not be remedied.” In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct. App. 2016)

       (citing In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)). A parent’s fitness is

       measured at the time of the termination hearing, and changed circumstances

       are balanced against habitual patterns of conduct to see if there is a “substantial

       probability of future neglect or deprivation.” Id. Trial courts have discretion to
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019   Page 7 of 10
       weigh a parent’s history more heavily than efforts made shortly before

       termination, and the court may find that a parent’s past behavior is the best

       predictor of future behavior. Id.


[12]   Here, Mother has failed to demonstrate that she is any closer to providing

       Children a safe, stable home than she was at the beginning of the CHINS case.

       The evidence shows that Mother did not follow through with the services

       offered to her, has not maintained stable housing, continues to test positive for

       marijuana, and is unable to provide for the basic needs of Children. Appellant’s

       App. Vol. II p. 52. The trial court found that “[f]or over six years, [Mother]

       failed to utilize the available services and make the necessary efforts to remedy

       the conditions, which led to intervention by DCS and the Court.” Id. at 52-53;

       see In re E.M., 4 N.E.3d at 644 (findings regarding father’s continued non-

       compliance with services support trial court’s conclusion that conditions

       resulting in children’s removal from father’s care would not be remedied). To

       the extent that Mother argues that she recently attempted to reengage in

       services, the trial court was well within its discretion to disregard the efforts

       Mother made only shortly before termination and to weigh more heavily

       Mother’s history of conduct before those efforts. See In re K.T.K., 989 N.E.2d at

       1234. Accordingly, the trial court did not err when it concluded that there is a




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019   Page 8 of 10
       reasonable probability that the conditions resulting in removal will not be

       remedied.2


[13]   Next, Mother argues that the trial court erred in concluding that termination is

       in Children’s best interests. To determine what is in the 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. In doing so, the trial court must

       subordinate the interests of the parent to those of the child. Id. We have

       previously held that recommendations by both the DCS manager and child

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

       resulting in removal will not be remedied, is clear and convincing evidence that

       termination is in the best interests of the child. Id. at 1158-59.


[14]   Here, FCM Abell and caseworker Barnwell both testified that terminating

       Mother’s parental rights is in Children’s best interests. See Tr. pp. 22, 45.

       Furthermore, the trial court found that Children “have been in the same

       placement for four years and are bonded and thriving in their placement.”

       Appellant’s App. Vol. II p. 52; see In re K.T.K., 989 N.E.2d at 1230 (finding that

       “children have an interest in terminating parental rights that prevent adoption

       and inhibit establishing secure, stable, long-term, continuous relationships.”).




       2
         Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
       resulted in Children’s removal will not be remedied, we do not address its alternate conclusion that there is a
       reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of
       Children. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B) is
       written in the disjunctive and requires the trial court to find only one of the two requirements of subsection
       (B) has been established by clear and convincing evidence), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019                     Page 9 of 10
       Finally, the trial court concluded that “[i]t would be unfair to [Children] to

       delay such permanency on the very remote likelihood of [Mother] committing

       to and completing services,” and that “after six years, . . . [Children] certainly

       have a right to permanency.” Appellant’s App. Vol. II p. 53; see In re A.D.S.,

       987 N.E.2d at 1159 (“permanency is a central consideration in determining the

       best interests of a child”); see also In re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct.

       App. 2004) (children’s needs are too substantial to force them to wait while

       determining if their parents will be able to parent them). Accordingly, the trial

       court did not err when it concluded that termination is in Children’s best

       interests.


[15]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019   Page 10 of 10
