MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                         Dec 14 2017, 8:45 am

regarded as precedent or cited before any                                          CLERK
                                                                               Indiana Supreme Court
court except for the purpose of establishing                                      Court of Appeals
                                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
                                                         Abigail R. Recker
Logansport, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re The Termination of The                             December 14, 2017
Parent-Child Relationship of:                            Court of Appeals Case No.
J.C.M. (Minor Child),                                    09A02-1703-JT-640
and                                                      Appeal from the Cass Circuit
                                                         Court
H.M. (Mother)
                                                         The Honorable Leo T. Burns,
Appellant-Respondent,                                    Judge

        v.                                               Trial Court Cause No.
                                                         09C01-1608-JT-9

The Indiana Department of
Child Services,
Appellee-Petitioner.



Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017         Page 1 of 19
                                   Case Summary and Issue
[1]   H.M. (“Mother”) appeals the juvenile court’s termination of her parental rights

      to her child, J.M. (“Child”). Mother presents two issues for our review which

      we consolidate and restate as whether the juvenile court’s termination order is

      clearly erroneous. Concluding the termination order is not clearly erroneous,

      we affirm.



                               Facts and Procedural History
[2]   Child was born to Mother and J.J.M. (“Father”)1 (collectively “Parents”) on

      September 22, 2013. At this time, Mother was serving in-home detention as the

      result of convictions for burglary and dealing in methamphetamine. Five weeks

      later, on October 29, Mother was transported to the hospital after appearing to

      be under the influence of a controlled substance. A drug screen administered by

      the hospital revealed positive results for oxycodone, amphetamine,



      1
        The juvenile court also terminated Father’s parental rights. On March 23, 2017, counsel filed a joint notice
      of appeal and appearance for Father and Mother. On June 19, 2017, counsel filed a motion to withdraw
      appearance on behalf of Father, alleging Mother objected to the joint representation and Father had not
      communicated with counsel. On June 22, 2017, counsel filed a brief on behalf of Mother only. On June 28,
      2017, this court granted counsel’s motion to withdraw appearance on behalf of Father, remanded to the trial
      court to assign successor counsel, and ordered Father’s brief to be filed within forty-five days. Accordingly,
      Father’s brief was due on August 14, 2017. Although new counsel did file an appearance, Father did not file
      a brief by August 14, 2017, and on September 8, 2017, this court granted DCS’s Motion to Close Briefing and
      Set Due Date for State’s Brief, granting DCS thirty days to file its brief. DCS timely filed its brief. On
      November 7, 2017, this court issued an order granting Father’s second counsel’s Motion to Withdraw
      Appearance and ordering the Cass County Public Defender’s Office to assign new appellate counsel, who
      was required to file an appearance within ten days. Father’s third counsel filed an appearance on November
      16, 2017, but no request to file a belated brief or other request for Father to participate in this appeal has been
      filed. Therefore, by separate order, Father’s appeal is dismissed pursuant to Appellate Rule 45(D) for failing
      to file a timely brief. Because Father did not file a brief and does not participate in this appeal, we limit our
      recitation of facts to those pertinent to Mother.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017               Page 2 of 19
      methamphetamine, and benzodiazepines. After Mother’s release, DCS

      attempted to collect drug screens from Parents but they refused.


[3]   On October 30, 2013, DCS filed an emergency petition for custody asking to

      remove Child from Parents’ home; then, on November 1, filed a petition

      alleging that Child was a child in need of services (“CHINS”). After an initial

      hearing on November 4, 2013, the juvenile court authorized Child’s removal

      from Parents’ care. Child was placed with maternal grandmother. On

      February 5, 2014, the juvenile court conducted a fact-finding hearing. Mother,

      who had returned to incarceration, admitted the Child was CHINS. On March

      5, the juvenile court found Child was a CHINS and awarded wardship to DCS.

      The court also ordered Mother to participate in various services provided by

      DCS. Child remained in the care of maternal grandmother.


[4]   Mother completed “Problem Solving Strategies for Successful Reentry” by

      February 2015, and began parenting time while incarcerated under the

      supervision of Jan Shaver, a case manager with George Junior Republic.2

      Mother continued exercising parenting time and transferred to work release

      before returning to in-home detention on June 1, 2015. After returning home,

      Mother’s “visits . . . progress[ed] in frequency [and] duration[.]” Transcript,

      Volume II at 115. Mother found employment and housing, which was an

      apartment shared with Father. Maternal grandmother, who supervised visits,




      2
        Mother also began an intensive outpatient program but was unable to complete the program due to
      transferring facilities.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017      Page 3 of 19
      moved with Child to an apartment downstairs. Shaver testified Mother was

      “doing really well.” Id. at 119. Overnight visits between Parents and Child

      began in October 2015, and, in January 2016, Parents began a trial home visit.

      In addition to Child, Parents also had five children between them from previous

      relationships.


[5]   In February 2016, Mother was released from in-home detention and placed on

      probation. Kimberly Ross, Child’s DCS family case manager, testified:


              [A]t that period of time, huh, it became very hard to locate either
              parent for drug screens, for drop-ins, for home-based, for any
              service at all, it became very difficult. The reasoning’s were
              always work, but prior to that they had been working as well,
              and we had been able to get those services.


      Id. at 167. Shaver also testified she “saw a difference probably end of February

      first of March 2016.” Id. at 119. Due to Parents’ infrequent contact with DCS,

      the trial home visit ended in April but Parents continued to have supervised

      visitation.


[6]   Jessica Risher, a case manager with George Junior Republic, began supervising

      visits with Child in May 2016. Of the approximately forty scheduled visits

      between May and August, fourteen were missed by both Parents and at one

      visit in early June, Risher believed Mother was intoxicated. Mother failed five

      drug tests between June and August. On August 9, Mother was arrested for

      disorderly conduct and public intoxication after cutting herself, becoming

      disorderly, and “yelling and screaming.” Id. at 78. Mother pleaded guilty to


      Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 4 of 19
      public intoxication and received twenty-eight days incarceration. Additionally,

      Mother’s probation was revoked in a prior case and she signed a plea agreement

      for a three-year sentence with eighteen months executed.


[7]   On August 31, 2016, DCS filed a petition to terminate Parents’ parental rights

      to Child. The juvenile court appointed counsel to represent Parents. On

      January 24, 2017, the court held a fact-finding hearing on DCS’ termination

      petition. There, Child’s Guardian Ad Litem (“GAL”) recommended that

      termination of Parents’ parental rights was in Child’s best interests. Family

      Case Manager Ross testified that her concerns about Mother regarded

      substance abuse and the fact that she has been “in and out of jail for most of her

      children’s lifetimes.” Id. at 160. Regarding Father, Ross discussed Father’s

      relapses and six arrests during Child’s life.


[8]   On February 23, 2017, the juvenile court entered a judgment terminating

      Parents’ parental rights. In doing so, the court concluded there was a

      reasonable probability that the conditions that resulted in Child’s removal and

      placement outside Parents’ home would not be remedied and that termination

      of parental rights was in Child’s best interest. Mother now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[9]   We begin by emphasizing the right of parents to establish a home and raise

      their children is protected by the Fourteenth Amendment to the United States

      Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 5 of 19
       Constitution. In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App. 2004), trans.

       denied. However, the law provides for the termination of these constitutionally

       protected 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). We

       subordinate the interests of the parents to those of the child when evaluating the

       circumstances surrounding a termination. In re K.S., 750 N.E.2d 832, 837 (Ind.

       Ct. App. 2001).


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

       evidence or judge the credibility of witnesses. In re D.D., 804 N.E.2d at 265.

       We only consider evidence, and reasonable inferences therefrom, most

       favorable to the judgment. Id. Furthermore, in deference to the trial court’s

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

       terminating a parent-child relationship when it is clearly erroneous. In re L.S.,

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

       1161 (2002).


[11]   Where, as here, the trial court enters findings of fact and conclusions thereon,

       we apply a two-tiered standard of review. Bester v. Lake Cty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). We must first determine whether

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

       support the judgment. Id. Findings will only be set aside if they are clearly

       erroneous and findings are only clearly erroneous “when the record contains no

       facts to support them either directly or by inference.” Yanoff v. Muncy, 688

       N.E.2d 1259, 1262 (Ind. 1997).
       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 6 of 19
                                       II. Termination Order
[12]   Our supreme court has described the involuntary termination of parental rights

       as “an extreme measure that is designed to be used as a last resort when all

       other reasonable efforts have failed.” In re C.G., 954 N.E.2d 910, 916 (Ind.

       2011). In order for the State to terminate parental rights, Indiana Code section

       31-35-2-4(b)(2) provides the State must 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.


               ***


               (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.


       The State 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).




       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 7 of 19
[13]   We note that “[i]t is common practice for our trial courts to conduct

       termination hearings as well as the CHINS proceedings underlying them

       involving multiple children and/or multiple parents in a single proceeding.” In

       re V.A., 51 N.E.3d at 1146. However, we must weigh the evidence as it pertains

       to each parent. See id.


[14]   Mother argues the juvenile court’s termination order is clearly erroneous

       because, she alleges, the State failed to present clear and convincing evidence to

       establish that: 1) the conditions that resulted in Child’s removal will not be

       remedied and; 2) the termination of the parent-child relationship is in Child’s

       best interests.


                                     A. Remedy of Conditions
[15]   Mother challenges the sufficiency of the evidence supporting the juvenile

       court’s determination that there is a reasonable probability the conditions that

       resulted in Child’s removal would not be remedied.


[16]   We engage in a two-step analysis to determine whether such conditions will be

       remedied: “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). Here, Child was

       removed from Mother’s care due to Mother’s substance abuse issues and

       frequent incarcerations which have left Child outside of Mother’s care except

       for a brief, five-month period.

       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 8 of 19
                                              1. Findings of Fact

[17]   Regarding this conclusion, Mother contests eleven of the juvenile court’s thirty-

       seven findings of fact, alleging the findings were “unsupported by the record”

       and include “overstatements and hyperbole.” Appellant’s Brief at 21.

       Specifically, Mother challenges Findings 13, 15, 16, 24, 25, 27, 29, 31, 35, 36,

       and 37.


[18]   Finding 13: Mother contends Finding 13 that “both parents tested positive for

       illegal substances on multiple occasions[,]” Appealed Order at 3, was

       unsupported because Mother “only failed five tests” and “some of the failed test

       [sic] were for marijuana only.” Appellant’s Br. at 21 n.3. Although Mother

       only tested positive on five out of sixty-seven tests and the positive results only

       occurred between June and August 2016, the court’s finding is still well

       supported by the record.


[19]   Finding 15: Mother takes issue with Finding 15 which states, “Substance abuse

       plagues the underlying Child in Need of Services cause.” Appealed Order at 3.

       She argues that she had only two episodes of drug relapse and there was

       therefore “not a plague of substance abuse.” Appellant’s Br. at 22 n.4. This is

       nothing more than a quarrel with the trial court’s phrasing and the record

       reveals repeated instances of substance abuse by both Father and Mother.


[20]   Finding 16: Mother contends the court’s characterization in Finding 16 of the

       October 29, 2013, incident where she was hospitalized is unsupported because

       “[t]here was no evidence Mother used drugs while the children were home.”


       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 9 of 19
       Appellant’s Br. at 22 n.5 (citing Appealed Order at 3-4, ¶ 16: “The incident

       surrounded Mother’s use of [illegal drugs] while the child was in the home

       . . . .”). Although there is a distinction to be made between the use of drugs in

       the sense of ingesting drugs, and the use of drugs as the act of being under their

       influence, such a distinction is not relevant here. The record reveals Mother

       tested positive near the time she was in the presence of the children. And,

       although this court has previously held that a “single admitted use of

       methamphetamine, outside the presence of the child and without more, is

       insufficient to support a CHINS determination,” Perrine v. Marion Cty. Office of

       Child Servs., 866 N.E.2d 269, 277 (Ind. Ct. App. 2007), here, Mother was

       neither wholly outside the presence of her children nor was this the only

       instance of drug use before the court.


[21]   Finding 24: Mother challenges the court’s finding that “Mother took very few

       steps to maintain her sobriety.” Appealed Order at 5. To the contrary, Mother

       argues, she “took about the [sic] step that she could to get sober.” Appellant’s

       Br. at 22, n.6. The record reveals that Mother failed to complete a substance

       abuse treatment program despite DCS’ repeated referrals, refused to participate

       in home-based counseling or therapy, tested positive for illegal substances on

       five occasions, and relapsed on two occasions. Again, the record supports the

       juvenile court’s finding.


[22]   Finding 25: Mother challenges the court’s finding that the “willingness of the

       parents to comply with services declined after the Mother was released from In

       Home Detention . . . .” Appealed Order at 5. Mother contends that her

       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 10 of 19
       “desires to have a loving and caring relationship with her [child] never subsided

       in this case.” Appellant’s Br. at 22, n.7. We, of course, do not doubt Mother’s

       love for Child but we must consider her actions leading to the case now before

       us. The record reveals that after Mother’s release from in-home detention it

       became difficult to locate her for drug screens and drop-ins, she missed at least

       fourteen visits with Child, she failed to maintain her home-based case

       management appointments, and it was difficult to communicate with her.

       Mother’s argument goes to the weight of the evidence and we remind her that

       we may not reweigh evidence or reassess witness credibility. In re D.D., 804

       N.E.2d at 265.


[23]   Finding 27: Mother challenges the following finding:


               27. As of the date of the hearing, the child had spent thirty four
               of his thirty nine months in the care of persons other than the
               parents. In that time, the child has experienced months where
               neither parent was able to be present in his life due to their own
               choices.


       Appealed Order at 5. Specifically, Mother alleges this finding is unsupported

       because even while incarcerated, Mother called Child and the only period she

       has not been present is since Child’s move to foster care. However, Family

       Case Manager Ross testified that Child had spent thirty-four months out of

       Parents’ home and, although the record supports Mother having made phone

       contact with Child, such contact was minimal and certainly did not constitute a

       full presence in Child’s life. Finding 27 is not clearly erroneous.



       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 11 of 19
[24]   Finding 29: Mother argues the juvenile court’s finding that Family Case

       Manager Ross and the GAL advised that Mother’s “continued presence in

       [Child’s] life is detrimental to [Child’s] well-being[,]” Appealed Order at 5, is

       unsupported and that, conversely, the record shows Mother was “always good

       to her children.” Appellant’s Br. at 23 n.9. At the hearing, the GAL testified

       that


               looking at it from [Child’s] perspective and considering the
               parents [sic] roll [sic], their conduct over and over seems to be the
               type of conduct that’s going to be detrimental to [Child’s]
               wellbeing.


       Tr., Vol. II at 172. Similarly, Family Case Manager Ross testified “I definitely

       have concerns” regarding Mother’s substance abuse issues and incarcerations.

       Id. at 159-60. Although the juvenile court oversimplifies Ross’s testimony, we

       do not believe it renders the court’s finding clearly erroneous.


[25]   Finding 31: Mother refutes the court’s finding of her criminal record in Finding

       31. The court found, in relevant part:


               31. Mother’s convictions range from Possession of Marijuana
               charged in 2000 and 2009 to False Informing charged in 2002
               and 2010 and Burglary in 2011 and three separate convictions for
               burglaries in 2012. Mother was also convicted for a charge of
               Dealing in Methamphetamine in 2012.


       Appealed Order at 6. The State admits this finding is unsupported and our

       review of the record reveals Mother has only one burglary conviction, not four.

       We must disregard any special finding that is not proper or competent to be

       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 12 of 19
       considered. In re B.J., 879 N.E.2d 7, 19 (Ind. Ct. App. 2008), trans. denied.

       However, given Mother’s remaining criminal history and the court’s other

       accurate findings, we find such error harmless. See id. (affirming termination of

       parental rights despite erroneous finding based on testimony stricken from the

       record because the error did not “constitute the sole support for any conclusion

       of law necessary to sustain the judgment”); Matter of A.C.B., 598 N.E.2d 570,

       573 (Ind. Ct. App. 1992) (affirming termination of parental rights despite

       erroneous findings because error was “not of such magnitude that it calls into

       question the court’s conclusion” that termination was in child’s best interests).


[26]   Finding 35: Mother challenges the juvenile court’s finding that “Mother finds

       herself in roughly the same position today as she was in at the time of removal

       in October 2013.” Appealed Order at 6. Specifically, Mother contends that at

       the time of Child’s removal she had criminal matters pending in three counties

       but now, after her current incarceration ends, she “will have no more criminal

       obligations.” Br. of Appellant at 23, n.11. We view this finding as an overall

       summary regarding Mother’s current position and, as such, the finding is not

       clearly erroneous. Mother has taken few steps regarding her substance abuse

       issues, and, as opposed to the time of removal, Mother is currently incarcerated.


[27]   Finding 36: The court found “Mother missed multiple parent time sessions after

       she was released from In-Home Detention in 2016 . . . .” Appealed Order at 6.

       Mother argues the court’s finding suggests the sessions were missed without

       good excuse. We disagree and conclude the record supports Finding 36.



       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 13 of 19
[28]   Finding 37: The court also found, in relevant part:


               37. The mere possibility that either parent will put forth the effort
               to obtain and maintain sobriety is so infinitesimal as to lead this
               court to find it will be unlikely that either parent, together or
               separate, will remedy their substance abuse issues or to place
               themselves in a position where they can provide for their young
               child.


       Appealed Order at 7. Mother argues that the finding is contrary to the

       evidence. For reasons discussed in greater detail below, we disagree and

       conclude the record supports the court’s finding.


[29]   Having reviewed Mother’s challenge to eleven of the juvenile court’s thirty-

       seven findings of fact, we conclude all—save one—are supported by the record.

       And, to the extent that Finding 31 misstates Mother’s criminal history, such

       error is harmless.


                          2. Probability Conditions Will Not Be Remedied

[30]   Mother also argues the State failed to prove there was a reasonable probability

       the conditions leading to Child’s removal will not be remedied. In determining

       whether the conditions that led to a child’s removal will not be remedied, the

       juvenile court must judge a parent’s fitness to care for his or her child at the

       time of the termination hearing, taking into consideration evidence of changed

       conditions. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).


[31]   The court’s inquiry must also evaluate a parent’s habitual pattern of conduct to

       determine the probability of future neglect or deprivation of the child. Id. On

       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 14 of 19
       this point, considerations of the court may properly include “evidence of a

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

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

       A.F. v. Marion Cty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct.

       App. 2002), trans. denied. Additionally, the court may consider the services

       offered by DCS and the parent’s response to those services. Id. at 1252.


[32]   Mother contends her condition has changed so that she shows a readiness to

       parent. She notes her imminent release from incarceration and the fact that she

       will be “cleared of all criminal obligations in 14 months and can focus on drug

       treatment and reunification with her children.” Appellant’s Br. at 24 n.11. The

       juvenile court, however, found:


               Mother finds herself in roughly the same position today as she
               was in at the time of removal in October 2013. Once again,
               Mother appears to be well on her way to be given an opportunity
               at being rehabilitated through incarceration. However, Mother’s
               previous release from the Indiana Department of Correction in
               2015 led to the series of events, and multiple decisions placing
               herself and her wants above the needs of her child that proceeded
               the request to terminate her parental rights.


       Appealed Order at 6, ¶ 35. As discussed above, we cannot say this finding is

       clearly erroneous.


[33]   Despite being counseled to participate in a substance abuse program for some

       four years, Mother has yet to complete such a program. The record also

       evinces Mother’s apparent inability to consistently engage in services aimed at


       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 15 of 19
       reunifying her with Child. Mother was difficult to locate or communicate with,

       missed at least fourteen visits with Child, and failed to maintain her home-

       based case management appointments. See Lang v. Starke Cty. Office of Family &

       Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (“A 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.”), trans. denied.


[34]   Moreover, a parent’s history of incarceration and the effects upon the children

       is also a relevant consideration. In re A.A.C., 682 N.E.2d 542, 545 (Ind. Ct.

       App. 1997). We have previously noted individuals who pursue criminal

       activity run the risk of being denied the opportunity to develop positive and

       meaningful relationships with their children. In re A.C.B., 598 N.E.2d 570, 572

       (Ind. Ct. App. 1992). Here, on more than one occasion, Mother’s conduct has

       led to her being arrested and Child being left without her. Mother has both

       violated her probation and committed new offenses since Child’s birth.


[35]   Evidence of changed conditions is balanced against habitual patterns of conduct

       to determine whether there is a substantial probability of future neglect and we

       give deference to the juvenile court in balancing this evidence. In re E.M., 4

       N.E.3d 636, 643 (Ind. 2014). Given Mother’s repetitive criminal history, her

       inability to consistently engage in services, and our deference to the juvenile

       court in such matters, we cannot say the juvenile court clearly erred in




       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 16 of 19
       concluding the evidence shows a reasonable probability the conditions resulting

       in Child’s removal will not be remedied.3


                                                 B. Best Interests
[36]   Mother also contends DCS failed to prove termination of her parental rights

       was in Child’s best interest. In determining the best interests of a child, the

       juvenile court must “look beyond the factors identified by the DCS and look to

       the totality of the evidence.” In re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App.

       2009). Moreover, the juvenile court “need not wait until the child is irreversibly

       harmed such that the child’s physical, mental and social development is

       permanently impaired before terminating the parent-child relationship.” In re

       K.T.K., 989 N.E.2d at 1235. Rather, recommendations of the case manager,

       court-appointed advocate, and evidence tending to show that the conditions

       resulting in removal will not be remedied is sufficient to show termination is in

       the child’s best interests by clear and convincing evidence. See, e.g., In re A.I.,

       825 N.E.2d 798, 811 (Ind. Ct. App. 2005), trans. denied.




       3
         Mother also argues the juvenile court erred in finding her continued custody poses a threat to the Child’s
       well-being. However, Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires only
       one element be proven to terminate Mother’s parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct.
       App. 2009); In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), trans. denied, cert. denied, 543 U.S. 1161
       (2002). Having concluded the evidence is sufficient to show a reasonable probability the conditions resulting
       in Child’s removal will not be remedied, we need not consider whether the parent-child relationship poses a
       threat to Child’s well-being.



       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017         Page 17 of 19
[37]   Mother contends Findings 1, 2, 3, 4, 9, 10, 11, and 12 of the Appealed Order

       regarding Child’s best interests were not supported by the record and that the

       remaining supported findings do not lead to the conclusion that termination of

       the parent-child relationship is in Child’s best interest. Appellant’s Br. at 17.

       Mother fails, however, to form a cogent argument or provide citations to the

       record regarding how these findings are unsupported. Accordingly, Mother has

       waived such argument. See Ind. Appellate Rule 46(A)(8)(a); In re B.R., 875

       N.E.2d 369, 373 (Ind. Ct. App. 2007) (finding mother had waived a challenge

       of the juvenile court’s findings or conclusions by failing to make a cogent

       argument).


[38]   As discussed above, there is sufficient evidence the conditions resulting in

       Child’s removal will not be remedied, and the GAL testified that termination of

       Mother’s parental rights was in Child’s best interests. Additionally, Mother has

       not demonstrated an ability to effectively use the services recommended to her.

       See In re T.F., 743 N.E.2d 766, 776 (Ind. Ct. App. 2001), trans. denied.

       Permanency is a central consideration in determining the best interests of a

       child. In re G.Y., 904 N.E.2d 1257, 1265-66 (Ind. 2009). Here, Child has been

       outside the care of Mother for all but five months of life and it is uncontested

       that Child is doing well in foster placement. Accordingly, the juvenile court did

       not err in its determination of Child’s best interests.



                                               Conclusion


       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 18 of 19
[39]   Concluding the juvenile court’s decision to terminate Mother’s parental rights

       was not clearly erroneous, we affirm.


[40]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-JT-640 | December 14, 2017   Page 19 of 19
