MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Mar 06 2019, 9:30 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
Katherine N. Worman                                      Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana
                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        March 6, 2019
Child Relationship of:                                   Court of Appeals Case No.
                                                         18A-JT-2348
Am.S. and Av.S., (Minor Children)
                                                         Appeal from the Vanderburgh
and                                                      Superior Court
C.S. (Mother),                                           The Honorable Brett J. Niemeier,
Appellant-Respondent,                                    Judge
                                                         The Honorable Renee A.
        v.                                               Ferguson, Magistrate
                                                         Trial Court Cause Nos.
The Indiana Department of Child                          82D04-1710-JT-2012
Services,                                                82D04-1710-JT-2013
Appellee-Petitioner.



Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019                   Page 1 of 21
                                 Case Summary and Issues
[1]   C.S. (“Mother”) appeals the termination of her parental rights as to two of her

      children, Am.S., born July 22, 2008, and Av.S., born July 4, 2012 (collectively

      the “Children”).1 Mother presents two issues for our review: (1) whether the

      juvenile court abused its discretion by granting DCS’ motion to reopen evidence

      after the parties rested; and (2) whether the juvenile court’s order terminating

      Mother’s parental rights was clearly erroneous. Concluding the juvenile court

      did not abuse its discretion and its termination order was not clearly erroneous,

      we affirm.



                              Facts and Procedural History
[2]   On August 31, 2016, Indiana Department of Child Services (“DCS”) family

      case manager, Jennifer Mullins, assessed and substantiated a claim that Am.S.

      had been waiting at a bus stop for over an hour unsupervised. 2 Another DCS

      case manager had seen Am.S. waiting at the stop on her way to a visit and

      Am.S. was still there one hour later. Am.S. was taken to the local DCS office.

      After Am.S. told DCS who her mother was, an investigation revealed that

      Mother had two prior DCS substantiations involving substance abuse. DCS

      and local police attempted to locate Mother. Two hours later, Mother arrived



      1
        Mother has another child, age 20, who is not subject to this appeal. Av.S.’s father’s parental rights were
      terminated on November 21, 2017, and he does not participate in this appeal. Am.S.’s father is unknown.
      2
        Am.S. was located nine blocks away from Mother’s house and would have had to cross a major highway to
      return home. Transcript, Volume II at 77.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019                      Page 2 of 21
      at the office with Av.S. Due to Mother’s “erratic” behavior, Mullins asked

      Mother to take a drug test. Transcript, Volume II at 78. Mother refused but

      admitted to using THC and methamphetamine. Mother suggested Am.S. stay

      with Mother’s sister who was living in the same house; however, the sister

      admitted that she would also test positive for THC. Due to a lack of parental

      supervision, Mother’s history of substance abuse and admission to ongoing

      substance abuse, as well as her anxiety and depression, the Children were

      removed from her care.


[3]   On September 2, DCS filed verified petitions alleging the Children were

      children in needs of services (“CHINS”).3 At the initial/detention hearing, the

      juvenile court found that removal of the Children was in their best interests and

      detention was necessary for their protection. The Children were adjudicated

      CHINS on September 13 and Mother was given provisional orders to obtain a

      substance abuse and mental health evaluation, follow treatment

      recommendations, submit to random drug screens, remain drug and alcohol

      free, and attend visitation with the Children.


[4]   Mother was subsequently arrested on September 27 on drug related offenses

      and placed on probation. Exhibits, Volume I at 105-06. Mother was in

      treatment at Deaconess Cross Pointe from October 4 through 7 and a




      3
        Although DCS filed separate petitions for each child, the cases are identical and contemporaneous with the
      other, including the termination orders. Thus, we only refer to one child’s Chronological Case Summary
      (“CCS”).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019                   Page 3 of 21
      dispositional hearing was held on October 11. As part of the parental

      participation plan, Mother was ordered to: participate in parent aide and out-

      patient mental health therapy; obtain a substance abuse evaluation and follow

      any treatment recommendations; submit to random drug screens; attend

      supervised visitation; and remain drug and alcohol free. See Appealed Order at

      33. In Mother’s criminal case, the State filed a petition to revoke her probation

      on October 12 and Mother later admitted to the allegations that she used heroin

      on October 1 and 2, tested positive for opiates on October 7, used heroin and

      THC on October 8, tested positive for opiates, oxycodone, and THC on

      October 10, and failed to appear for residential treatment on October 12.

      Exhibits, Vol. I at 107, 177-78.


[5]   Mother tested positive for opiates, benzodiazepines, amphetamine, and

      methamphetamine on November 10. She admitted to her probation officer that

      she had used methamphetamine on November 9 and heroin and clonazepam

      on November 10. Id. at 179. Mother was treated at Brentwood Meadows

      Inpatient Substance Abuse Program from November 10 through 19. On

      November 22, Mother’s probation officer filed a petition to revoke probation for

      failing to appear for the partial hospitalization program and a bench warrant

      was issued. Mother was arrested on February 1, 2017, and incarcerated until

      February 27 when she pleaded guilty to the drug charges. Mother was placed

      on probation and ordered to complete treatment. In May 2017, Mother’s

      probation officer filed another petition to revoke her probation for non-




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 4 of 21
      compliance with treatment at Counseling for Change and alleged that Mother

      provided diluted urine samples for drug screening. Id. at 184.


[6]   On August 15, the juvenile court held a permanency hearing in which the

      Children’s permanency plan was changed from reunification to reunification

      with a concurrent plan of adoption. Mother admitted the allegations in the

      petition to revoke on August 31 to the trial court handling her criminal case and

      was sentenced to work release. On October 2, while in work release, Mother

      overdosed on heroin and was provided a dose of Narcan. Mother was then

      ordered to serve the remainder of her sentence in the Indiana Department of

      Correction.


[7]   On October 30, DCS filed its Verified Petitions to Terminate the Parent-Child

      Relationship of Mother and the juvenile court appointed a court appointed

      special advocate (“CASA”) for the Children. The juvenile court held a fact-

      finding hearing in this matter on January 16, June 5, and June 19, 2018. Weeks

      later, Mother was arrested and charged with dealing in methamphetamine,

      maintaining a common nuisance, unlawful possession of a syringe, possession

      of methamphetamine, and possession of paraphernalia with a prior conviction.

      See Appellant’s Appendix, Volume II at 64. DCS filed a Motion to Reopen

      Evidence on July 27 and the juvenile court reconvened to hear arguments on

      the motion. Over Mother’s objection, the juvenile court granted DCS’ motion

      and took judicial notice of the new criminal charges against Mother, “not going

      to the weight of any evidence or whether the allegations are true or not but just



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 5 of 21
      for the mere fact that a new case has been filed and [M]other is incarcerated on

      that new filing.” Id. at 9.


[8]   On September 11, the juvenile court granted DCS’ petitions to terminate

      Mother’s parental rights and recounted the facts set forth above and concluded:4


              C. Facts Relating to Child’s Continued Removal from Parents’
              Home and Care: Reasonable Probability of Parent Not
              Remedying Reasons for Removal, Threat to Child’s Wellbeing


              1. Throughout the duration of the CHINS case, Mother has
              failed either to participate in or to benefit from the services
              ordered by the CHINS Court. . . .


              ***


              6. . . .Due to Mother’s failure to comply with random drug
              screens during the CHINS cause, she has been unable to
              demonstrate that she has remained drug and alcohol free.
              Mother’s involvement in multiple criminal matters related to her
              use of illegal substances while under the jurisdiction of this Court
              clearly demonstrates her failure to abide by this Court order.


              ***


              15. Mother had previously attended at least three (3) substance
              abuse facilities prior to this CHINS matter. When asked why she
              uses drugs, Mother identified herself as a trigger for her drug use,
              stating that she does not “deal with emotions well.” Mother



      4
        We take this opportunity to commend the juvenile court on its thorough findings of fact and conclusions of
      law which have aided in our analysis of this case.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019                   Page 6 of 21
        acknowledged she has self-medicated with the use of illegal
        drugs, indicating a correlation between her substance abuse and
        mental health.


        16. Mother’s testimony on 6/5/2018 revealed that she has a
        limited understanding of the impact of her substance abuse,
        specifically on her ability to function as a parent. Mother’s
        continued use of illegal substances put her in danger of physical
        harm, or even death. Mother’s drug use has resulted in
        incarceration and it continues to place her in danger of
        incarceration. . . .


        17. After the conclusion of the fact-finding hearing . . . Mother
        was again arrested and charged with drug-related crimes. . . .
        While Mother stated during her fact-finding hearing on 6/5/2018
        that the ability to see her [Children] is her motivation to stay
        sober, it appears from her recent actions as if the prospect of
        being reunited with her [Children] is not enough to dissuade her
        from a life of poor decisions and persistent drug use.


        18. Mother’s substance abuse served as one of many conditions
        leading to the [Children’s] initial removal from the home.
        Mother’s testimony described a history of drug use going as far
        back as 2006, marked by the abuse of multiple illegal substances,
        as well as several failed attempts at getting sober, even when her
        own freedom or relationship with her [Children] have been at
        stake. The Court finds that, despite the intervention of both the
        CHINS and Criminal Court, Mother has demonstrated an
        inability to remain sober, as well as a clear pattern of behavior in
        regard to her substance abuse. She has consistently ignored the
        orders of the Court and failed to benefit form the services
        provided her in order to alleviate this concern.


        ***


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 7 of 21
        20. Mother’s mental health served as a contributing factor to the
        [Children’s] removal from the home. Despite the CHINS Court
        order and her own understanding that she could benefit from
        mental health services, Mother failed to obtain a mental health
        evaluation during the duration of the CHINS case. As such,
        Court finds that Mother has failed to address this condition of
        removal.


        ***


        D. Child’s Best Interest & DCS Plan for Care and Treatment


        ***


        11. Mother has proven herself unable or unwilling to meet her
        parental responsibilities. Her long history with substance abuse,
        leading up to her most recent criminal charges for drug-related
        offenses, provides the Court with the best predictor of her future
        behavior. Given the persistence of Mother’s substance abuse,
        despite consistent intervention from the CHINS and Criminal
        Courts, this Court finds there is at least a reasonable probability
        that her behavior will not change. Further, Mother’s habitual
        patterns of conduct indicate a high probability of future neglect or
        deprivation of the [Children]. Therefore, this Court finds
        termination of parental rights is appropriate and consistent with
        the best interests of the [Children], in order to protect the
        [Children’s] emotional and physical well-being from the threat
        posed by Mother.


Appealed Order at 5-16. The trial court concluded that there is a reasonable

probability that the conditions resulting in Children’s removal and continued

placement outside the home will not be remedied and that the continuation of

the parent-child relationship poses a threat to the Children’s well-being. It also

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 8 of 21
       concluded that termination of Mother’s parental rights is in the Children’s best

       interests and a satisfactory plan for the care and treatment of the Children

       exists, namely adoption. See id. at 16, 33. Mother now appeals.



                                  Discussion and Decision
                              I. Motion to Reopen Evidence
[9]    Mother argues the juvenile court erred by reopening the case to allow DCS to

       introduce additional evidence of new criminal charges filed against her after the

       fact-finding hearing. “Evidence must be offered during the course of a trial and

       it is a matter of discretion whether a [juvenile] court will permit a party to

       present additional evidence or testimony once the party has rested, once both

       parties have rested, or after the close of all of the evidence.” In re D.Q., 745

       N.E.2d 904, 908 (Ind. Ct. App. 2001). A trial court’s decision in this respect

       will be reversed only if there is a clear abuse of discretion. Id.


[10]   Here, the fact-finding hearing concluded on June 19, 2018. Mother was

       subsequently arrested and charged for drug-related crimes. Due to the new

       charges, DCS filed a Motion to Reopen Evidence on July 27 and the juvenile

       court reconvened to hear arguments on the motion. Over Mother’s objection,

       the juvenile court granted the motion and took judicial notice of a new criminal

       case against Mother. See Appellant’s App., Vol. II at 9. The juvenile court

       stated:




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 9 of 21
               So just for judicial notice that a new case has been filed against
               [Mother], not going to the weight of any evidence or whether the
               allegations are true or not, just for the mere fact that a case has
               been filed, and [Mother] is incarcerated on that new filing.


       Tr., Vol. II at 130.


[11]   In its termination order, however, the juvenile court relied on Mother’s most

       recent arrest and found:


               17. After the conclusion of the fact-finding hearing on the
               petition to terminate her parental rights on 6/19/2018, Mother
               was again arrested and charged with drug-related crimes. . . .
               While Mother stated during her fact-finding hearing on 6/5/2018
               that the ability to see her [C]hildren is her motivation to stay
               sober, it appears from her recent actions as if the prospect of
               being reunited with her [C]hildren is not enough to dissuade her
               from a life of poor decisions and persistent drug use.


       Appealed Order at 9-10. Mother argues the new information is “highly

       prejudicial[,]” the information in the probable cause affidavit “possess[es] a risk

       of unreliability,” and is excluded by Indiana Evidence Rule 803(22).

       Appellant’s Brief at 14.


[12]   In determining whether there is a reasonable probability that the conditions

       which led to the Children’s removal will not be remedied, the juvenile court is

       required to 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 against habitual patterns of conduct

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

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 10 of 21
       deprivation.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). And the juvenile court

       may consider a parent’s criminal history and substance abuse in this

       determination. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013).

       Although Mother had not been convicted of these new charges at the hearing,

       Mother’s recent arrest and incarceration post-trial is highly relevant to this

       inquiry.


[13]   In re D.Q., the State and guardian ad litem (“GAL”) appealed the denial of its

       petition to terminate a mother’s parental rights. 745 N.E.2d at 909. The State

       and GAL alleged the trial court abused its discretion by reopening the case to

       allow mother to present additional evidence post-trial of a lease agreement and

       photos of her new apartment. The State adequately cross-examined the mother

       on the new evidence and offered testimony reaffirming that termination was in

       the child’s best interests. On appeal, we affirmed the trial court’s decision

       reasoning that the State failed to demonstrate how the additional evidence

       resulted in prejudice. Id.


[14]   Similarly here, despite Mother’s argument that the evidence is prejudicial to her

       because she has not yet been convicted and she lacked an opportunity to present

       her own evidence, we conclude Mother has failed to demonstrate how the

       additional evidence of her recent arrest and incarceration, regardless of

       disposition, is highly prejudicial to her. Therefore, we cannot conclude the

       juvenile court abused its discretion by considering this evidence. Even if we

       held otherwise, such an error would be harmless with all of the other evidence

       that supports the juvenile court’s decision to terminate Mother’s parental rights.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 11 of 21
                                      II. Termination Order
[15]   The Fourteenth Amendment to the United States Constitution protects a

       parent’s right to raise their children. K.T.K. v. Ind. Dep’t of Child Servs., 989

       N.E.2d 1225, 1230 (Ind. 2013). “A parent’s interest in the care, custody, and

       control of his or her children is ‘perhaps the oldest of the fundamental liberty

       interests.’” Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147

       (Ind. 2005) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). However, these

       parental interests are not absolute and must be subordinated to the child’s

       interests in determining the proper disposition of a petition to terminate

       parental rights. In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004), trans.

       denied. Parental rights may be terminated when the parents are unable or

       unwilling to meet their parental responsibilities. Id. at 265. Involuntary

       termination of parental rights constitutes the “most extreme sanction” and is

       considered a “last resort, available only when all other reasonable efforts have

       failed.” In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert.

       denied, 534 U.S. 1161 (2002). The purpose of terminating parental rights is to

       protect children, not to punish parents. In re D.D., 804 N.E.2d at 265.


[16]   We review termination of parental rights with great deference, In re J.C., 994

       N.E.2d 278, 283 (Ind. Ct. App. 2013), and we do not reweigh the evidence or

       judge the credibility of the witnesses, Bester, 839 N.E.2d at 147. Instead, we

       consider the evidence and reasonable inferences thereof most favorable to the

       juvenile court’s judgment. Id. As required by Indiana Code section 31-35-2-

       8(c), the juvenile court entered findings of fact and conclusions of law when

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 12 of 21
       terminating Mother’s parental rights and we therefore apply a two-tiered

       standard of review. K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 646 (Ind.

       2015). We first determine whether the evidence supports the findings, then

       whether the findings support the judgment. Id. We will set aside the juvenile

       court’s judgment only if it is clearly erroneous, namely “when the record

       contains no facts to support [the findings] either directly or by inference.”

       Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).


[17]   To terminate a parent’s rights, Indiana Code section 31-35-2-4(b)(2) requires

       that the State prove the following elements by clear and convincing evidence:


               (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 18A-JT-2348 | March 6, 2019   Page 13 of 21
       See also Ind. Code § 31-37-14-2 (“A finding in a proceeding to terminate

       parental rights must be based upon clear and convincing evidence.”).


[18]   Here, the juvenile court found that DCS proved both subsections (i) and (ii) of

       Indiana Code section 31-35-2-4(b)(2)(B) by clear and convincing evidence.

       Mother challenges the juvenile court’s findings in this regard, as well as its

       finding that termination is in the best interests of the Children. We address

       each below.


                                     A. Remedy of Conditions
[19]   Mother challenges the juvenile court’s finding that there is a reasonable

       probability that the conditions which led to the Children’s removal and

       continued placement outside the home will not be remedied. In determining

       whether the conditions which resulted in the Children’s removal will not be

       remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d at 642-43.


               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. In the second step, the
               [juvenile] 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
               against habitual patterns of conduct to determine whether there is
               a substantial probability of future neglect or deprivation. We
               entrust that delicate balance to the [juvenile] court, which has
               discretion to weigh a parent’s prior history more heavily than
               efforts made only shortly before termination. Requiring
               [juvenile] 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.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 14 of 21
       Id. at 643 (citations and internal quotation marks omitted). The juvenile court

       may consider a parent’s prior criminal history, drug and alcohol abuse, history

       of neglect, failure to provide support, lack of adequate housing and

       employment, and services offered by DCS to the parent and his or her response

       to those services. N.Q., 996 N.E.2d at 392.


[20]   The Children were initially removed from Mother on August 31, 2016 “[d]ue to

       lack of parental supervision, Mother’s history of substance abuse and admission

       of ongoing abuse of multiple illegal substances,” and Mother’s anxiety and

       depression. Appealed Order at 4. Mother argues she has made improvements

       since the Children’s removal and that a reasonable probability exists that the

       conditions which resulted in their removal “could be remedied with additional

       services and time.” Appellant’s Br. at 19. Unfortunately, the record reveals

       otherwise.


[21]   Evidence of Mother’s substance abuse dates back to as early as 2006. In March,

       August, and October 2006, Mother was charged with possession of

       paraphernalia. See Exhibits, Vol. I at 68, 79, 88. Roughly seven months later,

       in May 2007, she was charged with possession of cocaine. In 2010, DCS

       removed Am.S. and Mother’s oldest child from Mother and placed them in

       foster care due to Mother’s substance abuse issues. At the time, Mother was

       using cocaine. Tr., Vol. II at 42. DCS again became involved in 2014 and filed

       CHINS petitions involving the Children due to Mother’s substance abuse

       issues. Mother was ordered to complete services focused on her substance

       abuse problem.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 15 of 21
[22]   In August 2016, the Children were removed from Mother after Mother

       admitted she would test positive for THC, non-prescribed medication, and

       methamphetamine. The Children were adjudicated CHINS on September 13

       and Mother was given provisional orders to obtain a substance abuse

       evaluation, submit to random drug screens, obtain a mental health evaluation,

       follow any treatment recommendations, attend visitation, and remain drug and

       alcohol free. Two weeks after the CHINS adjudication, Mother was arrested

       and charged with several drug offenses. Mother was placed on probation, but

       petitions to revoke were filed in October and November 2016 for her failure to

       appear at treatment and submitting positive drug screens.


[23]   Mother was in treatment from October 4 through 7 and again from November

       10 through 19, 2016, but failed to begin the partial hospitalization program after

       her release. In March 2017, Mother began Counseling for Change for

       substance use disorder treatment, which she attended for a while. However, in

       April she was discharged for being disruptive in class and again discharged in

       May for too many absences. DCS case manager Laura Opperman stated that,

       to her knowledge, Mother had not participated in any substance abuse

       treatment since she was discharged from Counseling for Change.


[24]   Another petition to revoke probation was filed in May 2017 for non-compliance

       with counseling and for submitting a diluted urine sample. After her probation

       was revoked, Mother was ordered to serve her original sentence on work

       release. While in work release in October, Mother overdosed on opiates and

       was given Narcan. Exhibits, Vol. I at 126. Mother admitted to using heroin at

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 16 of 21
       the time and was incarcerated to serve the remainder of her sentence from

       October 2017 until April 15, 2018. Most recently, after the fact-finding hearing

       in this matter concluded in June 2018, Mother was again arrested in July and

       charged with several drug related crimes.


[25]   As to Mother’s compliance with the parent participation plan, Mother was

       ordered to meet with a parent aide, which she began in December 2016. Mother

       met with the aide a few times “[b]ut over time she – in April she wouldn’t

       return calls or text messages from the parent aide and then in May and June she

       just refused to meet with her.” Tr., Vol. II at 88. Opperman also testified that

       although Mother submitted to fourteen drug screens between March and May

       2017, twelve of which were negative and two diluted, she missed fifty drug

       screens between September 22, 2016 and October 3, 2017. She explained that

       “[Mother] was incarcerated for an additional eleven dates, not including [the]

       fifty that were missed.” Id. at 93. Opperman “couldn’t say that [Mother] was

       drug and alcohol free the whole time.” Id. at 88.


[26]   Mother testified that she had not used any illegal substances since her overdose

       and that she was not at a facility long enough to complete any program, but she

       did participate in programs, including the RARE program, AA, and NA.

       Opperman testified that she was aware Mother had completed the RARE

       program and women’s bible study, but no other programs.


[27]   As to Mother’s mental health issues, she testified that she was diagnosed with

       anxiety and depression around age eleven. Id. at 46. Opperman testified that


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 17 of 21
       Deaconess recommended that Mother go to Echo Clinic for medication

       management but did not recall where she was supposed to go for counseling.

       However, Mother did not follow up or complete the mental health assessment.

       At the fact-finding hearing, Mother said she was taking medication while

       incarcerated but was unable to take her anti-depressants or anti-anxiety

       medication because she did not have a doctor or insurance. She also stated that

       she experiences auditory hallucinations almost on a daily basis. Ultimately,

       Opperman testified that “[n]o progress was made at all during this case in any

       way.” Id. at 91. Similarly, because Mother did not demonstrate sobriety,

       missed drug screens, and lacked a stable home, supervised visitation with her

       Children never progressed to unsupervised visitation. Id. at 87-88.


[28]   Mother points to her progress since her release on April 15, 2018, in support of

       her argument that there is a reasonable probability the conditions could be

       remedied. She contends that, in the two months between her release and the

       conclusion of the fact-finding hearing, no services have been offered to her, she

       voluntarily contacted Opperman, obtained employment, and was seeking

       housing. Although we commend Mother on her recent efforts, we have held

       that when a parent demonstrates only temporary improvements, but the

       “pattern of conduct shows no overall progress, the [juvenile] court might

       reasonably find that under the circumstances, the problematic situation will not

       improve.” In re N.Q., 996 N.E.2d at 392. Thus, DCS only had to establish that

       a reasonable probability exists that Mother’s behavior will not change. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 18 of 21
[29]   Here, the juvenile court found that despite intervention, “Mother has

       demonstrated an inability to remain sober, as well as a clear pattern of behavior

       in regard to her substance abuse. She has consistently ignored the orders of the

       Court and failed to benefit from the services provided [to] her in order to

       alleviate this concern.” Appealed Order at 10. Thus, it concluded that

       Mother’s “long history with substance abuse, leading up to her most recent

       criminal charges for drug-related offenses, provides the Court with the best

       predictor of her future behavior.” Id. at 15.


[30]   Even if Mother has had periods of sobriety and has recently made efforts to

       better her life, the juvenile court was within its discretion to weigh Mother’s

       pattern of conduct more heavily than any recent progress. See E.M., 4 N.E.3d

       at 643 (noting we entrust to the juvenile court the delicate balance of weighing a

       parent’s recent improvements against habitual patterns of conduct to determine

       whether there is a substantial probability of future neglect or deprivation).

       Mother’s criminal history, prior DCS interventions, lack of compliance, and

       most recent arrest highlights a long-term pattern of substance abuse and mental

       health issues with little to no overall improvement. Thus, there is ample

       evidence in the record supporting the juvenile court’s finding that there is a




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 19 of 21
       reasonable probability that the conditions which led to the Children’s removal

       will not be remedied.5


                                               B. Best Interests
[31]   Mother also challenges the juvenile court’s determination that termination of

       her parental rights is in the Children’s best interests. In determining the best

       interests of a child, the juvenile court must look beyond the factors identified by

       DCS and consider the totality of the evidence. In re A.S., 17 N.E.3d 994, 1005

       (Ind. Ct. App. 2014), trans. denied. In doing so, the juvenile court must

       subordinate the interests of the parents to those of the child and it need not wait

       until a child is irreversibly harmed before terminating the parent-child

       relationship. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185,

       203 (Ind. Ct. App. 2003). Recommendations of the case manager and court-

       appointed advocate, in addition to evidence that the conditions resulting in

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

       evidence that termination is in the child’s best interests. A.S., 17 N.E.3d at

       1005.


[32]   Here, family case manager Opperman and CASA, Autumne Baker, both

       testified that termination of Mother’s parental rights was in the best interests of



       5
         Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the juvenile court only had to
       find that DCS proved by clear and convincing evidence one of three elements of subsection (B). Castro v. Ind.
       Office of Family & Children, 842 N.E.2d 367, 373 (Ind. Ct. App. 2006), trans. denied. We hold that the evidence
       in the record supports the juvenile court’s finding that Mother’s substance abuse and mental health issues will
       not be remedied; therefore, we need not also address whether the evidence supports the juvenile court’s
       finding that the continuation of the parental relationship poses a threat to the Children.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019                    Page 20 of 21
       the Children. See Tr., Vol. I at 91, 118. Opperman explained that termination

       was in the Children’s best interests “[b]ecause [the Children] are able to have a

       stable home and ensure that all of their needs are met and they have sober care

       givers who are there for them all the time physically and emotionally.” Id. at

       92. We conclude that Opperman and Baker’s recommendations, coupled with

       evidence that Mother’s substance abuse and mental health issues will not be

       remedied, are sufficient to support the juvenile court’s determination that

       termination is in the Children’s best interests.



                                               Conclusion
[33]   For the foregoing reasons, we conclude that the juvenile court did not abuse its

       discretion by granting DCS’ motion to reopen evidence after the fact-finding

       hearing concluded and the juvenile court’s order terminating Mother’s parental

       rights was not clearly erroneous.


[34]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2348 | March 6, 2019   Page 21 of 21
