MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Aug 20 2020, 8:28 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Robert J. Henke
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                        August 20, 2020
of Parental Rights of:                                  Court of Appeals Case No.
                                                        19A-JT-1982
G.C. (Minor Child)                                      Appeal from the Adams Circuit
and                                                     Court
C.C. (Mother),                                          The Honorable Chad E. Kukelhan,
                                                        Judge
Appellant-Respondent,
                                                        Trial Court Cause No.
        v.                                              01C01-1806-JT-31


The Indiana Department of
Child Services,
Appellee-Petitioner,



Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020                   Page 1 of 28
                                  Case Summary and Issue
[1]   C.C. (“Mother”) appeals the termination of her parental rights to her minor

      child and presents the sole issue of whether the juvenile court’s order

      terminating her parental rights was clearly erroneous. Concluding it was not,

      we affirm.



                              Facts and Procedural History
[2]   Mother and A.K. are the biological parents of G.C. (“Child”), born November

      30, 2016. Mother’s husband, K.C., is Child’s legal father.1 Mother has another

      child, R.C., who is not the subject of this appeal, but is relevant. In 2014, the

      Wells County Department of Child Services (“DCS”) opened a child in need of

      services (“CHINS”) case regarding R.C. due to Mother’s drug use. Mother was

      not compliant with services throughout the case and, around June 2016,

      Mother voluntarily terminated her parental rights as to R.C.


[3]   Months later, on November 30, 2016, the local DCS office in Adams County

      received a report from Bluffton Regional Hospital that Mother had just given

      birth to Child and the hospital had concerns about Mother’s ability to care for

      Child. Mother tested negative for drugs upon admission to the hospital and

      Child’s meconium test was negative. Mother had been arrested in February




      1
        Ultimately, Child’s biological and legal fathers both voluntarily relinquished their parental rights to Child.
      See Appellant’s Appendix, Volume II at 29-31, 35-36. Accordingly, we have limited our recitation of the facts
      to those pertaining solely to Mother except as necessary.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020                    Page 2 of 28
      2016 for possession of a hypodermic needle, possession of paraphernalia, and

      resisting law enforcement. Mother was incarcerated from April to August

      2016. Ultimately, she pleaded guilty, was sentenced, and placed on probation.

      However, shortly after her release, Mother was arrested for possessing

      marijuana, heroin, and paraphernalia and was incarcerated until mid-

      November, about three weeks prior to Child’s birth.


[4]   At the time Child was born, Mother’s previous CHINS case remained open and

      DCS family case managers (“FCM”) Danielle Reed and Taylor Evans

      contacted Mother’s prior case manager to obtain background information

      before visiting Mother in the hospital. The case manager advised them that

      Mother failed to complete any services in the CHINS case and voiced concerns

      over Mother’s drug use and missed drug screens. Reed and Evans also learned

      from hospital staff that Mother had a positive drug screen,2 had been recently

      arrested for possession of marijuana and heroin while pregnant with Child, and

      during several prenatal visits, Mother stated she intended to give Child up but

      later stated she planned to give custody of Child to a friend in Ohio. In

      addition, Child had stopped gaining weight toward the end of Mother’s

      pregnancy due to substance abuse.


[5]   On December 1, the day after Child was born, Reed and Evans went to the

      hospital to speak with Mother; however, Mother was extremely hostile and




      2
          It is unclear from the record when Mother had the positive drug screen.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 3 of 28
      initially refused to speak with them – stating that “her past doesn’t matter and

      that she was not going to give [them] any information.” Transcript, Volume 1

      at 49. Eventually, Mother agreed to speak with them. Mother stated she was

      living on First Street in Decatur, which was different from the Ohio address she

      provided to the hospital, did not have a job, and was serving a three-year

      probation sentence. Mother told the case managers it was “not any of [their]

      business” who she was living with or how she was going to provide for Child.

      Id. She also refused to tell them what supplies she had for Child and indicated

      she would not participate in their Healthy Families program and would refuse

      any service. During the conversation, Mother’s behavior escalated, and

      hospital staff asked Reed and Evans to leave.


[6]   After talking with Mother, the case managers went to the residence in Decatur

      where Mother had reported she was living. An unknown man answered the

      door and refused to let them inside the house; he was unaware of Mother’s

      whereabouts but believed she had last been at the house on November 30.


[7]   Ultimately, DCS had “a lot of concerns with [Mother’s] previous history and

      not being able to ensure safety once [C]hild left” the hospital. Id. at 51. As a

      result, DCS determined that Child needed to be removed and filed a petition for

      an emergency custody order with the juvenile court. On December 2, the

      juvenile court granted DCS’ petition; Child was removed and placed in foster

      care.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 4 of 28
[8]   On December 6, DCS filed a petition alleging Child was a CHINS. An

      initial/detention hearing was held the same day during which the juvenile court

      entered a denial on behalf of Mother. At a fact-finding hearing on February 7,

      2017, Mother admitted Child was a CHINS and agreed she would benefit from

      services. The juvenile court adjudicated Child a CHINS and appointed a

      guardian ad litem (“GAL”).


[9]   Following a hearing on May 16, the juvenile court entered a dispositional order

      requiring Mother to (among other things): successfully complete an Intensive

      Family Preservation Program; participate in home based counseling; complete

      a parenting assessment, substance abuse assessment, and domestic violence

      assessment and complete all recommendations and treatment; complete a

      psychological evaluation and any recommendations; meet with

      medical/psychiatric personnel and take the proper dosage of all prescribed

      medications; maintain suitable housing and income; attend all scheduled

      visitation; refrain from using illegal substances or alcohol; obey the law; submit

      to random drug screens; and follow all terms of her probation. See Exhibits,

      Volume 1 at 62-67. DCS referred Mother to case management services,

      supervised visitation, psychological assessment, family centered treatment

      (“FCT”), and a batterer’s intervention program with the Center for

      Nonviolence. DCS did not refer Mother to substance abuse treatment because

      she had already been referred through the probation department, which sent its

      reports to DCS.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 5 of 28
[10]   Mother completed her substance abuse assessment through Park Center in

       Wells County, as well as the required two NA or AA meetings. Mother later

       moved to Adams County where she continued treatment. Adams County

       required an additional three NA or AA meetings, but Mother refused to

       participate in the extra meetings. Park Center recommended that Mother

       participate in and complete the accepting responsibility group and sixteen-week

       recovery group. Mother failed to complete both programs.


[11]   Mother completed the clinical interview and assessment portion of the

       psychological assessment but never completed the psychological testing.

       Mother also began FCT, a four-phase program focusing on changing family

       interactions. Mother completed the first phase, but then missed appointments

       and had fewer visits with Child. Mother was often angry and defensive, which

       interfered with treatment. Ultimately, FCT was unsuccessfully closed out

       sometime during the summer of 2017.


[12]   On May 30, Mother tested positive for THC during a random drug screen for

       probation. See id. at 73. Mother’s probation was revoked in June and she was

       arrested. Months later, Mother tested positive for Ultram, for which she did not

       have a prescription; her probation was revoked again, and she was arrested.

       Mother was sentenced to serve the remainder of her two- and one-half-year

       sentence at the Indiana Department of Correction. Mother was initially placed

       in the Madison Correctional Facility through the Department of Correction;

       however, she was written up fifteen times for various conduct issues and was



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 6 of 28
       later transferred to maximum security at the Indiana Women’s Prison for

       failing to acclimate.


[13]   Following a review hearing on November 3, 2017, the juvenile court issued an

       order finding that Mother had been partially compliant with the case plan “until

       she violated her probation[,] a warrant was issued for her arrest[,]” and she was

       reincarcerated. Id. at 54. Another review hearing was held on March 9, 2018.

       The juvenile court found that Mother had not been compliant with the Child’s

       case plan as she remained incarcerated and unable to complete services. The

       juvenile court also found that the conditions that led to Child’s removal from

       Mother had not been alleviated and Mother had not enhanced her ability to

       fulfill her parental obligations. In June 2018, the juvenile court issued an order

       finding the same but also that Mother has continued to struggle with substance

       abuse and has failed to demonstrate she is able to meet Child’s needs. See id. at

       33-34.


[14]   On September 11, the juvenile court held a permanency hearing and

       subsequently entered an order changing Child’s permanency plan from

       reunification to adoption. DCS filed its Verified Petition for Involuntary

       Termination of Parent-Child Relationship between Mother and Child on

       November 7.


[15]   Mother was released from prison in March 2019. She had been incarcerated for

       approximately sixteen months during which time she completed several classes

       addressing various topics such as parenting, substance abuse, anger, and


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 7 of 28
       improving your life. Following Mother’s release, DCS referred Mother to

       supervised visitation, home based case management, substance abuse classes,

       and medication valuation. Mother complied with services by attending her

       appointments, submitting to random drug screens, re-engaging in home based

       casework, completing a substance abuse evaluation, and attending visitation

       with Child. Prior to and after being incarcerated, Mother maintained

       employment with EP Graphics. Mother did not, however, enroll in a batterer’s

       intervention program.


[16]   The juvenile court held a fact-finding hearing on May 3, 2019, and took the

       matter under advisement. Several weeks later, DCS filed its Motion to Reopen

       Case in Chief alleging that since the May 3 hearing, Mother had been arrested

       in Ohio and was being held for the illegal conveyance of drugs of abuse into jail

       and possession of criminal tools. The juvenile court granted DCS’ motion and

       held a hearing on July 17 during which additional evidence concerning

       Mother’s recent criminal charges was presented. See id. at 120-124. On July 24,

       the juvenile court issued its order terminating Mother’s parental rights and

       finding, in pertinent part and including the specific findings that Mother

       challenges:


               A.   Facts Relating to Initial Removal of Child, CHINS
               Adjudication & Dispositional Order


               ***




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 8 of 28
        6.     During the course of the assessment regarding Child’s
        wellbeing by DCS in November/December 2016 Mother was
        combative and hostile toward DCS staff. Mother did not have a
        plan to care for [C]hild and when DCS visited the home
        [M]other identified there were no supplies located in the home
        for [C]hild.


        ***


        B.    Facts Relating to Child’s Continued Removal from
        Parent’s Home and Care[.]


        ***


        3.      Mother has an extensive history of drug use; [M]other
        testified that she has used illegal drugs for seventeen years.


        4.    Mother has a history of criminal activity and criminal
        convictions, including:


                a.   Purchase of More Than 9 Grams of Precursor in a
                Month[.]


                b.       Battery[.]


                c.    Possession of Paraphernalia, Resisting Law
                Enforcement, and Unlawful Possession of a Syringe[.]


                d.       Failure to Appear[.]


        ***



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 9 of 28
        7.      On December 1, 2016 DCS went to the home Mother
                identified as her address and there were no supplies or
                preparations for the Child.


        8.      On December 1, 2016 DCS attempted to address Child’s
                weight loss and feeding concerns with Mother and she
                disregarded the concerns. Mother reported she had
                discussed Child’s care with his pediatrician but could not
                identify who the Child’s pediatrician was. DCS attempted
                to connect Mother with Healthy Families and she reported
                she was unwilling to participate in community resources.
                Mother’s behavior escalated and the Child had to be taken
                from Mother’s arms due to her behavior.


        ***


        10.     Mother initially participated in [FCT], one of the most
                intensive services DCS can offer a parent. The service
                began in March 2017 and was closed unsuccessfully in
                June 2017. The FCT worker, Megan Cox, testified that
                Mother was discharged due to progress not being made in
                the FCT program. Mother was slow to complete the first
                of four phases of FCT due to her aggression and
                defensiveness. The second phase addresses making
                change and Mother was unable to progress through the
                second phase. Mother began missing appointments, had a
                brief incarceration and had a positive drug screen. Ms.
                Cox testified that due to the slow progress by Mother and
                the lack of consistency FCT was closed out.


        ***


        12.     Mother last participated in the supervised visitation during
                the first week of September 2017. On September 18, 2017
                Mother cancelled her visitation. The foster parents

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 10 of 28
                cancelled the visit on September 22, 2017 due to Child
                having a fever. On September 26, 2017 the caseworker
                transported Child to the visit and Mother called to cancel
                the visit. On September 28, 2017 Mother reported she had
                a warrant and was unsure of the visit, she did not confirm
                the visit.


         ***


        18.     Mother was released from incarceration on March 11,
                2019 and attended the termination hearing originally
                scheduled for March 19, 2019. Mother completed a drug
                screen on March 21, 2019 and attended intake evaluations
                for substance abuse treatment and medication
                management. The Court ordered DCS to provide
                visitation following Mother’s compliance for two weeks
                with services. Mother has not participated in a
                psychological evaluation and has not participated in
                batterer’s intervention services.


        19.     Mother has a history of methamphetamine and heroin use.
                Mother testified that she is currently receiving the vivitrol
                shot and received the pill form of vivitrol while
                incarcerated. Mother reports that the vivitrol blocks her
                cravings for opiates as long as she continues to receive the
                shots. Mother reports she does not have cravings for
                methamphetamine.


        20.     Mother contends that she had been sober for two years
                during her incarceration. Mother has only demonstrated
                two months of sobriety since her release from
                incarceration.


        21.     On cross examination of Mother by her attorney, Mother
                reported that her anger is not a problem for her. Mother

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 11 of 28
                has not addressed her history of domestic violence and
                ongoing conduct issues. [FCMs], service providers and
                the [GAL] testified that Mother was extremely combative
                and they were unable to ensure child safety or move
                forward with services during periods when Mother was
                free from incarceration.


        22.     During the time Mother was free from incarceration she
                did not maintain stable housing. During the first ten
                months of the case Mother had four different homes she
                reported staying at. Mother maintained employment at
                EP Graphics prior to her incarceration and resumed
                employment following incarceration. Despite the steady
                employment Mother was unable to maintain independent
                or stable housing. Mother is currently residing in a
                friend’s home.


        23.     Mother has not completed domestic violence education,
                substance abuse treatment, psychological evaluation or
                medication evaluation.


        24.     The participation by Mother in services while free from
                incarceration and during incarceration has been plagued
                by a continued cycle of criminal activity and substance
                abuse.


        ***


        30.     Based on Mother[’s] unwillingness to address underlying
                issues of substance use and anger, and inability to
                demonstrate stability, DCS [FCM], Gwendolyn Gaddy,
                testified that adoption and termination of parental rights is
                in [Child’s] best interest. [GAL], Beth Webber’s testimony
                echoed that adoption and termination of parent rights is in
                Child’s best interest. The GAL has ongoing concerns that

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 12 of 28
                         Mother’s lack of willingness to follow rules and maintain
                         appropriate conduct in a structured jail setting causes
                         significant concern that Mother is unlikely to remedy the
                         concerns in a less structured setting.


       Appealed Order at 2-3, 7-12 (record citations omitted). Based on these findings,

       the juvenile court concluded there is a reasonable probability that the conditions

       that resulted in Child’s removal and continued placement outside of Mother’s

       care will not be remedied and the parent-child relationship poses a threat to

       Child’s well-being. The juvenile court also concluded that termination of

       Mother’s parental rights is in Child’s best interest and DCS has a satisfactory

       plan for Child, namely adoption. See id. at 14. Mother now appeals.3



                                    Discussion and Decision
                                         I. Standard of Review
[17]   The right of parents to establish a home and raise their children is protected by

       the Fourteenth Amendment to the United States Constitution. In re D.D., 804

       N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied. The law provides for the




       3
        On August 23, 2019, the juvenile court appointed the public defender’s office to represent Mother on appeal.
       The same day, Mother filed her notice of appeal. However, on January 14, 2020, this court dismissed the
       appeal with prejudice for failure to timely file the Appellant’s Brief. See Appellant’s App., Vol. II at 61. The
       public defender’s office filed its Acceptance of Appointment and Formal Notice of Appointment of Outside
       Counsel stating it had not received notice of the appointment or any communication regarding Mother’s
       appeal and appointing Kimberly Jackson as counsel to seek reinstatement of and perfect Mother’s appeal.
       See id. at 62-63. The juvenile court concurred and formally appointed Ms. Jackson as Mother’s appellate
       counsel. Mother subsequently filed a Motion to Reinstate Appeal and this court granted the motion and
       ordered Mother’s brief due within thirty days.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020                   Page 13 of 28
       termination of these rights when parents are unable or unwilling to meet their

       parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008).

       Although we acknowledge that the parent-child relationship is “one of the most

       valued relationships in our culture,” we also recognize that “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.” Bester v. Lake

       Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (internal

       quotations omitted). The involuntary termination of one’s parental rights is the

       most extreme sanction a court can impose because termination severs all rights

       of a parent to his or her children. See In re T.F., 743 N.E.2d 766, 773 (Ind. Ct.

       App. 2001), trans. denied. As such, termination is intended as a last resort,

       available only when all other reasonable efforts have failed. Id. The purpose of

       terminating parental rights is to protect children, not to punish parents. In re

       D.D., 804 N.E.2d at 265.


[18]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge the credibility of witnesses. Lang v. Starke Cty. Office of Family

       & Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied. Instead, we

       consider only the evidence most favorable to the judgment and the reasonable

       inferences that can be drawn therefrom. Id. In deference to the juvenile court’s

       unique position to assess the evidence, we will set aside its judgment

       terminating a parent-child relationship only if it is clearly erroneous. In re

       L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied, 534



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 14 of 28
       U.S. 1161 (2002). Thus, if the evidence and inferences support the decision, we

       must affirm. Id.


[19]   The juvenile court entered findings of fact and conclusions thereon as required

       by Indiana Code section 31-35-2-8(c), and we therefore apply a two-tiered

       standard of review. Bester, 839 N.E.2d at 147. We first determine whether the

       evidence supports the findings, then determine whether the findings support the

       judgment. Id. “Findings are clearly erroneous only when the record contains

       no facts to support them either directly or by inference.” Quillen v. Quillen, 671

       N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous only if the findings

       do not support the court’s conclusions or the conclusions do not support the

       judgment thereon. Id.


                     II. Statutory Framework for Termination
[20]   To terminate parental rights, Indiana Code section 31-35-2-4(b)(2) requires

       DCS to prove, in relevant part:


               (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.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 15 of 28
                       (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.


       DCS must prove the foregoing elements by clear and convincing evidence. Ind.

       Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). However,

       because subsection (b)(2)(B) is written in the disjunctive the juvenile court need

       only find one of those three elements has been proven by clear and convincing

       evidence. See, e.g., In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). If a

       juvenile court determines the allegations of the petition are true, then the court

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


                                       III. Findings of Fact
[21]   As noted above, the juvenile court’s judgment contains specific findings of fact

       and conclusions thereon. Therefore, we must first determine whether the

       record contains evidence supporting the challenged findings either directly or by

       inference. In re A.S., 17 N.E.3d 994, 1002 (Ind. Ct. App. 2014), trans. denied.

       Mother argues that seven of the juvenile court’s findings are clearly erroneous.

       Specifically, she challenges findings A.6., B.7., 8, 10, 12, 18, and 21.


[22]   Mother only challenges the portions of findings A.6. and B.7. concerning DCS’

       visit to Mother’s home on December 1, 2016 in which the juvenile court found

       that there were no baby supplies at the home. Mother contends that “DCS
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 16 of 28
       agents were not allowed to enter the home” and there is no evidence in the

       record that the home lacked supplies for Child. Brief of the Appellant at 17.

       Mother is correct. Testimony reveals that DCS went to Mother’s home, an

       unknown male answered the door, and he would not let them in. Therefore,

       DCS was unable to determine whether Mother had baby supplies or not. DCS

       concedes, and we agree, there is no evidence in the record to support this

       portion of findings A.6. and B.7. and therefore, they are clearly erroneous.


[23]   In finding B.8., the juvenile court found that when DCS visited Mother in the

       hospital, Mother’s “behavior escalated and the Child had to be taken from Mother’s

       arms due to her behavior.” Appealed Order at 8 (emphasis added). Mother

       contends this finding is clearly erroneously because the hospital staff asked the

       DCS FCMs to leave the room because they had upset Mother. FCM Reed

       testified that, while talking with Mother in the hospital, Mother became “pretty

       worked up, everyone was making sure, because originally she was holding

       [Child], was asked to put him back into the bassinet . . . because of how she was

       escalating with her behaviors[.]” Tr., Vol. 1 at 50. Contrary to the juvenile

       court’s finding, the record establishes that Child was not physically removed

       from Mother’s arms. This portion of the finding is clearly erroneous. However,

       the substance of the finding – that hospital staff and DCS were clearly

       concerned Child may be harmed as a result of Mother’s escalating behavior –

       remains the same whether Child was physically removed from Mother or

       whether the staff asked Mother to put him down.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 17 of 28
[24]   Next, Mother challenges the juvenile court’s characterization of FCT,

       contained in finding B.10., as “one of the most intensive services DCS can offer

       a parent” as clearly erroneous because the record only supports a finding the

       FCT is “intensive.” Appealed Order at 8; Br. of the Appellant at 18. We agree

       this portion of the finding is erroneous as there is no evidence in the record to

       show that FCT is anything other than an intensive program.


[25]   Mother argues finding B.12., that Mother cancelled her September 26, 2017

       visit with Child, is clearly erroneous. In September 2017, Sarah Derosett,

       family consultant at Lifeline Youth and Family Services, received a referral to

       supervise Mother’s visitation with Child. From the middle to end of

       September, Mother had six scheduled visits. Derosett testified that of these,

       Mother attended two visits but the other four were cancelled. See Tr., Vol. 1 at

       75. On September 26, Derosett picked Child up for the scheduled visit;

       however, she received a call from the FCM that Mother had stated “if she

       didn’t get her own supervised time . . . she didn’t want to visit at all[.]” Id. at

       76. As a result, Derosett transported Child back to his foster family. We

       conclude the juvenile court’s finding that Mother cancelled the September 26

       visit is a reasonable interpretation of this evidence. Therefore, finding B.12. is

       not clearly erroneous.


[26]   In finding B.18., the juvenile court found that Mother “has not participated in a

       psychological evaluation [or] batterer’s intervention services.” Appealed Order

       at 10. Mother contends that the juvenile court found that she had not

       participated in these services since her release from prison, which “erroneously

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 18 of 28
       suggests [she] had the opportunity to participate [when i]n reality, the FCM

       failed in her duty to refer Mother to those services” after her release. Br. of the

       Appellant at 18. As part of the dispositional order, Mother was ordered to

       complete a psychological evaluation and domestic violence services. See

       Exhibits, Vol. 1 at 62- 67. DCS then put in referrals for these services. At the

       May 3 hearing, FCM Gaddy testified that, to her knowledge, Mother had not

       engaged in the batterer’s intervention program or scheduled the second part of

       her psychological evaluation. See Tr., Vol. 1 at 103. Contrary to Mother’s

       argument, the juvenile court did not actually find that since her release she failed

       to participate in the psychological evaluation or batterer’s intervention services;

       the juvenile court simply found she did not participate in these programs. The

       evidence in the record supports this finding because Mother failed to complete

       the second part of the psychological assessment and never engaged in batterer’s

       intervention services. Therefore, this portion of the finding is not clearly

       erroneous and does not erroneously suggest that the FCM failed to refer Mother

       to these services.


[27]   With respect to finding B.21., the juvenile court found that FCMs, service

       providers, and the GAL all “testified that Mother was extremely combative and

       they were unable to ensure child safety or move forward with services during

       periods when Mother was free form incarceration.” Appealed Order at 11.

       Mother argues she “progressed at times when she was not incarcerated,

       although sometimes her negative behaviors slowed progress.” Br. of the

       Appellant at 19. The following evidence in the record supports this finding:


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 19 of 28
           • Megan Cox, the FCT clinician, testified that Mother’s anger, frustration,

               and defensiveness interfered with treatment and treatment goals. See Tr.,

               Vol. 1 at 70.


           • FCM Laurie Hoffacker handled Mother’s case until July 2017. With

               respect to child and family team meetings, FCM Hoffacker testified that

               “[m]ost of them ended with [Mother] being very . . . explosive, very

               irritated, verbally abusive, so we were able to hold some but then they

               didn’t normally end well.” Id. at 86. In general, Hoffacker stated, when

               “[Mother] interacted with me or DCS staff, . . . her demeanor was very

               angry, she was very verbally aggressive[.]” Id. at 87-88.


           • The GAL, Beth Webber, testified Mother had trouble listening to others;

               she stated that Mother “wanted to do it her way and unfortunately

               because of that, she hasn’t completed any of the services that were

               ordered under disposition.” Id. at 129.


       Based on this evidence, we cannot conclude finding B.21. is clearly erroneous.


[28]   In sum, portions of findings A.6., B.7., 8, 10 are clearly erroneous; the

       remaining challenged findings are not clearly erroneous. Notwithstanding the

       erroneous findings, however, as discussed below, we conclude that DCS

       presented sufficient evidence to support termination of Mother’s parental rights

       and the unchallenged findings support the juvenile court’s judgment. See In re

       A.S., 17 N.E.3d at 1003-06 (holding that despite several clearly erroneous



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 20 of 28
       findings of fact, DCS presented sufficient evidence to support termination of

       parental rights even absent the erroneous findings).


                                    IV. Conclusions of Law
                                    A. Remedy of Conditions
[29]   The juvenile court concluded there is a reasonable probability that the

       conditions resulting in Child’s continued placement outside Mother’s care will

       not be remedied. Mother challenges this conclusion and argues “by the time of

       the first termination of parental rights hearing, [she] had addressed the issues

       which led to the initial and continued removal of” Child. Br. of the Appellant

       at 20. We disagree.


[30]   In determining whether such conditions will be remedied, we engage in a two-

       step analysis: “First, we must ascertain what conditions led to [Child’s]

       placement and retention in foster care. Second, we determine whether there is

       a reasonable probability that those conditions will not be remedied.” In re

       K.T.K., 989 N.E.2d 1225, 1231 (Ind. 2013) (quotation omitted). With respect

       to the second step, a juvenile court assesses whether a reasonable probability

       exists that the conditions justifying a child’s removal or continued placement

       outside his parent’s care will not be remedied by judging the parent’s fitness to

       care for the child at the time of the termination hearing, taking into

       consideration evidence of changed conditions. In re E.M., 4 N.E.3d 636, 643

       (Ind. 2014). The juvenile court must also balance a parent’s recent

       improvements against habitual patterns of conduct to determine the likelihood


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 21 of 28
       of future neglect. Id. Habitual conduct may include criminal history, drug and

       alcohol abuse, history of neglect, failure to provide support, and lack of

       adequate housing and employment, but the services offered to the parent and

       the parent’s response to those services can also be evidence of whether

       conditions will be remedied. A.D.S v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

       1157 (Ind. Ct. App. 2013), trans. denied. DCS “is not required to provide

       evidence ruling out all possibilities of change; rather, it need establish only that

       there is a reasonable probability the parent’s behavior will not change.” In re

       I.A., 903 N.E.2d at 154.


[31]   We begin with the conditions that led to removal or reasons for placement

       outside of the home. Child was initially removed from Mother due to DCS’

       concern that Mother had been using drugs, incarcerated for most of her

       pregnancy, and was unprepared to care for Child. Child remained outside of

       Mother’s care due to her substance abuse, incarceration, and non-compliance

       with services. We conclude that the evidence in the record supports the

       juvenile court’s conclusion that there is a reasonable probability that the

       conditions that led to Child’s removal and continued placement outside of

       Mother’s care will not be remedied.


[32]   Although Mother had a few brief periods of compliance, overall, she was non-

       compliant with services. FCM Hoffacker was assigned to Mother’s case from

       December 2016 to July 2017. Hoffacker referred Mother to case management

       services, supervised visitation, psychological assessment, FCT, and a batterer’s

       intervention program, all of which were ordered in the dispositional decree. See

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 22 of 28
       Tr., Vol. 1 at 82. At the fact-finding hearing, Hoffacker testified that Mother

       completed the first step of the psychological assessment in March 2017 but did

       not complete the second step, namely the psychological testing. Id. Mother

       also participated in FCT and completed the first phase; however, she then

       missed several appointments and the service was unsuccessfully closed out. See

       id. at 92. Mother did engage in home based counseling; however, Hoffacker

       described Mother’s attendance with the home based case manager as “pretty

       sporadic[.]” Id. at 89.


[33]   With respect to the batterer’s intervention program, Hoffacker stated that

       Mother did not engage in that program while she had the case. Instead, Mother

       “had given [her] a couple of excuses saying that she couldn’t attend the classes

       because of the timing of them but then she also was angry that [DCS was]

       bringing up something that had happened in the past.” Id. at 82. Ultimately,

       Hoffacker did not consider Mother to be in compliance with services for the

       following reasons: Mother tested positive for marijuana several times; she

       missed visits with Child and had not progressed to unsupervised visitation; she

       violated probation and was incarcerated for a brief period; she lived in four

       different homes and therefore, failed to maintain stable housing; and she failed

       to complete the psychological testing and was not addressing her mental health

       issues. See id. at 85-86. Similarly, FCM Gaddy, who was assigned Mother’s

       case in February 2018 while Mother was still incarcerated, testified that even

       prior to Mother’s incarceration, Mother did not successfully complete services.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 23 of 28
[34]   At the fact-finding hearing, the GAL testified that she believes Mother “can

       hold it together for short periods of time [but cannot] hold it together for long

       periods of time and maintain that stability.” Id. at 129. She also testified that

       Mother’s pattern of non-compliance was very concerning:


               It’s a huge concern [because Child] has spent two and a half
               years of his life in limbo in licensed foster care and so knowing
               that that’s her pattern of behavior, I believe that pattern will
               continue. Past behavior is the best predictor of future behavior
               and so knowing that that’s what has happened and that she’s had
               periods of time where she’s committed crimes and been
               incarcerated, where she’s followed through with services and
               then not followed through with services, that’s going to continue
               most likely to be her pattern.


       Id. at 131.


[35]   Mother has been incarcerated throughout most of the CHINS and termination

       proceedings. In fact, the record reveals that Mother was incarcerated for

       eighteen of the twenty-two months that Hoffacker had the case. See id. at 96.

       Furthermore, Mother was initially placed in a minimum security correctional

       facility through the Department of Correction but was eventually transferred to

       the Indiana Women’s Prison because she had been written up for fifteen

       conduct issues. As the juvenile court found, “Mother’s lack of willingness to

       follow rules and maintain appropriate conduct in a structured jail setting causes

       significant concern that Mother is unlikely to remedy the concerns in a less

       structured setting.” Appealed Order at 12.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 24 of 28
[36]   In the short period of time between her release in March 2019 and the hearing

       in May, FCM Gaddy put in new referrals for Mother. Mother engaged in the

       substance abuse referral, attended appointments, participated in drug screens

       and home based casework, and visitation. At the time of the May 3 hearing,

       Mother was compliant with services and had obtained suitable housing.

       However, shortly thereafter, DCS learned that Mother had been incarcerated in

       Ohio and had been charged with the illegal conveyance of drugs of abuse onto

       grounds of a specified governmental facility and possession of criminal tools.

       Despite a brief period of compliance, Mother again fell back into a pattern of

       criminal activity, which only serves to highlight Mother’s failure to remedy her

       instability and inability to care for Child.


[37]   Mother argues the juvenile court’s conclusion that there is a reasonable

       probability the conditions that resulted in Child’s removal will not be remedied

       is erroneous because it “was based on speculation that [she] would not maintain

       her sobriety and diligence in pursuing services and a proper home environment

       for [Child].” Br. of the Appellant at 21. The juvenile court’s conclusion is

       rooted in Mother’s behavior over the last two and a half years illustrating her

       continued substance abuse, incarceration, and instability, not speculation. In

       determining whether conditions are likely to be remedied, a juvenile court is

       entrusted with “balancing a parent’s recent improvements against habitual

       patterns of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” In re E.M., 4 N.E.3d at 643 (internal quotation

       omitted). The juvenile court has the discretion to weigh a parent’s prior history


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 25 of 28
       more heavily than any recent improvement. Id. And “[r]equiring [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.”

       Id. This is exactly what the juvenile court did here. It weighed Mother’s past

       behavior (i.e., her pattern of instability) more heavily and determined that it

       was the best predictor of her future behavior, a task solely within its discretion.


[38]   This court has often noted that evidence of a parent’s “pattern of unwillingness

       to deal with parenting problems and to cooperate with those providing social

       services, in conjunction with unchanged conditions, support a finding that there

       exists no reasonable probability that the conditions will change.” In re L.S., 717

       N.E.2d at 210. Unfortunately, such is the case here. Over the two and one-half

       years, Mother has demonstrated a pattern of non-compliance with services,

       incarceration, drug use, and overall instability that is unlikely to be remedied.

       For these reasons, we conclude the juvenile court’s findings support its

       conclusion.4


                                               B. Best Interests
[39]   “Permanency is a central consideration in determining the best interests of a

       child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). To determine the best




       4
         Mother also contends the juvenile court erred in finding that the continuation of the parent-child
       relationship poses a threat to the well-being of Child. See Br. of the Appellant at 21-22. Having concluded
       the evidence is sufficient to show a reasonable probability the conditions resulting in Child’s continued
       placement outside of Mother’s care will not be remedied, we need not consider whether the parent-child
       relationship poses a threat to Child’s well-being. See In re L.S., 717 N.E.2d at 209.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020                 Page 26 of 28
       interests of the child, the juvenile court must look beyond the factors identified

       by DCS and to the totality of the evidence. In re D.L., 814 N.E.2d 1022, 1030

       (Ind. Ct. App. 2004), trans. denied. In doing so, the juvenile court must

       subordinate the interests of the parent to those of the children involved and

       need not wait until a child is irreversibly harmed before terminating parental

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

       (Ind. Ct. App. 2003). Recommendations of the FCM and the GAL that

       parental rights should be terminated support a finding that termination is in the

       child’s best interest. In re A.B., 887 N.E.2d 158, 170 (Ind. Ct. App. 2008).


[40]   Here, the GAL and FCM Gaddy both testified that termination of Mother’s

       parental rights is in Child’s best interests. See Tr., Vol. 1 at 13, 104, 129. The

       GAL expressed her concern that Mother has only been able to demonstrate a

       pattern of being able to maintain stability and comply with services for short

       periods of time. See id. at 129. She testified that Child has been in foster care

       for two and one-half years and needs permanency, which “would be adoption

       by the people that he’s been with that he knows as his parents, the current

       licensed foster parents and so from my perspective, it’s in the best interests of

       this child that termination of parental rights occur and that he be allowed to be

       adopted.” Id. In addition, FCM Gaddy echoed the GAL’s testimony, stating

       that “[b]eing that it has been awhile [sic] and I know a lot of times since [Child]

       has been in the foster care since day one, he has formed a bond with [his foster

       parents]. He is a part of their family. My recommendation, [DCS’]

       recommendation would be for him to stay with them for adoption.” Id. at 104.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 27 of 28
       Based on this evidence, we conclude that DCS proved by clear and convincing

       evidence that termination of Mother’s parental rights would be in Child’s best

       interests. In re A.B., 887 N.E.2d at 170.



                                               Conclusion
[41]   DCS presented sufficient evidence to support the juvenile court’s order

       terminating Mother’s parental rights. Therefore, the order was not clearly

       erroneous, and the judgment of the juvenile court is affirmed.


[42]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1982 | August 20, 2020   Page 28 of 28
