MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jul 22 2020, 11:14 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
Ana M. Quirk                                              Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana
                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 22, 2020
of the Parent-Child Relationship,                         Court of Appeals Case No.
N.G., Minor Child,                                        20A-JT-60
S.B., Mother,                                             Appeal from the Delaware Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Kimberly Dowling,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               18C02-1905-JT-110
Services,
Appellee-Petitioner.



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020                    Page 1 of 15
[1]   S.B. (“Mother”) appeals the involuntary termination of her parental rights to

      her child, N.G. 1 We affirm.


                                           Facts and Procedural History

[2]   On May 26, 2017, the Indiana Department of Child Services (“DCS”) filed a

      petition alleging N.G., who was born on November 11, 2009, was a child in

      need of services (“CHINS”), had been tardy to school on forty-eight occasions

      and absent fifteen days during the school year. It also alleged that Mother used

      illicit substances including, but not limited to, marijuana, amphetamine, and

      methamphetamine, appeared to have sores on her chin and her mouth and

      injection wounds on her arms on May 17, 2017, and used illicit substances

      while serving as the child’s primary caregiver. The trial court issued an order

      following an initial hearing which indicated it had entered a denial on Mother’s

      behalf and N.G. had been removed and was currently in relative care. 2


[3]   Orders issued for continued initial hearings held on July 3 and September 25,

      2017, indicate that Mother failed to appear at the hearings and that the court

      entered default judgment against her on September 26, 2017. On November 6,

      2017, the court issued an order noting the default judgment and adjudicated

      N.G. to be a CHINS. On January 22, 2018, Mother failed to appear for the

      dispositional hearing, and the court’s February 6, 2018 order indicates it




      1
          N.G.’s father consented to adoption of the child and does not participate in this appeal.
      2
       The court’s December 9, 2019 termination order found that N.G. was removed on or about May 25, 2017,
      and had been continuously placed with her paternal grandmother since that time.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020                      Page 2 of 15
      ordered Mother, among other things, to: contact the DCS family case manager

      (“FCM”) every week; allow the FCM or other service providers to make

      announced or unannounced visits to the home of the child and permit entrance

      to ensure the safety of the child and to make the child available to the FCM;

      keep all appointments with any service providers, DCS, or the CASA/GAL,

      and give advance notice and good cause for missed appointments; maintain

      suitable, safe and stable housing; secure and maintain a legal and stable source

      of income; not use, consume, manufacture, distribute or sell illegal controlled

      substances; and take prescription medications for which a valid and current

      prescription exists and in doses and frequencies specified in the prescription; not

      consume any alcohol; obey the law; complete a parenting assessment and

      successfully complete all recommendations; submit to random drug screens;

      and attend all scheduled visitations.


[4]   Following a May 13, 2019 hearing, the court changed the permanency plan to

      adoption. 3 In May 2019, the State filed a petition for termination of Mother’s

      parental rights as to N.G. On August 15, 2019, and October 24, 2019, the court

      held a factfinding hearing at which it heard testimony from Mother, therapists for

      Mother and N.G., several family case managers, and a court appointed special

      advocate (the “CASA”). When asked whether there would be any problem if

      Mother and N.G. were reunited, family case manager Alexis Jones stated that



      3
       The court’s May 28, 2019 order also indicated that DCS had provided home-based care work services,
      substance abuse assessment and treatment, and drug screens, and that Mother had not complied with the
      case plan.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020                   Page 3 of 15
      “there would be some concerns based on how much time there’s been . . . in this

      case” and expressed her thought that Mother is a positive influence and

      relationship in N.G.’s life. Transcript Volume II at 94. The CASA testified that

      the sobriety Mother maintained while incarcerated and “now through the

      watchful eyes of the court while she is . . . on house arrest” was “going to be

      difficult to maintain” and that it was reasonable to expect any long-term

      recovery, was “gonna (sic) be um, still quite a long time in the making” and “not

      a sure thing,” but “a maybe.” Id. at 103. The CASA agreed with DCS’s

      termination recommendation and asked the court to grant the petition to

      terminate Mother’s rights.


[5]   On December 9, 2019, the court issued its termination order, which found:


              13. [FCM Ethan] Harriett [(“FCM Harriett”), a Family Case
              Manager with DCS,] was assigned to the CHINS case from the
              end of May 2017 until the end of October of 2017.

              14. Mother’s substance use was the primary reason that the child
              was out of the home at the time FCM Harriett was assigned to the
              CHINS case.

              15. The child’s mother used illicit substances, including
              methamphetamine, every day from early 2017 until her
              incarceration in March of 2019.

                                                    *****

              18. During the time FCM Harriett was assigned to the CHINS
              case, Mother did not complete a substance abuse assessment or
              participate in counseling, and Mother did not submit to substance
              use screens.



      Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020   Page 4 of 15
        19. FCM Harriett attempted to contact Mother regularly
        throughout his management of the CHINS case in an attempt to
        engage her in services.

        20. Mother inconsistently participated in visitation with the child
        while FCM Harriett was assigned to the CHINS case.

                                              *****

        22. Khalid Fazly (“FCM Fazly”) was a Family Case Manager
        with DCS and was assigned to the CHINS case from October of
        2017 until January 10, 2019.

        23. During the time that FCM Fazly was assigned to the CHINS
        case, Mother’s substance use remained the primary reason that the
        child remained placed outside of Mother’s care.

        24. After several unsuccessful attempts to contact Mother, FCM
        Fazly was finally able to meet with [M]other on November 21,
        2017.

        25. At that time, Mother refused to submit to a drug screen.

        26. Referrals for home-based case work, substance abuse
        treatment and parenting assessments were active and in place at
        the time FCM Fazly was assigned to the CHINS case.

        27. On November 21, 2017, FCM Fazly advised Mother of the
        court-ordered services and provided her with a copy of the most
        recent court order and with contact information for service
        providers.

        28. Mother did not complete a substance abuse assessment, did
        not participate in any substance abuse treatment, and participated
        in only a single home-based case work session during the time
        FCM Fazly was assigned to the CHINS case.

        29. Mother did not maintain consistent communication with
        DCS, and FCM Fazly often did not know Mother’s whereabouts.


Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020    Page 5 of 15
                                              *****

        34. FCM [Gregory] Buchanan [(“FCM Buchanan”)] was
        assigned to the CHINS case from January of 2019 until the end of
        August of 2019.

        35. At the time FCM Buchanan was assigned to the case, all of
        Mother’s service referrals had been closed due to Mother’s failure
        to participate in them.

        36. Mother’s substance abuse remained the primary issue that
        kept the child outside of Mother’s care.

        37. Additionally, Mother was incarcerated in White County,
        Indiana between March of 2019 and June of 2019.

        38. Mother was convicted of burglary as a level 4 felony.

        39. At the time FCM Buchanan was assigned to the CHINS case,
        there was not a known address nor a known phone number for
        Mother.

        40. FCM Buchanan attempted to contact Mother using the
        numerous addresses and phone numbers that were in the CHINS
        case file.

        41. FCM Buchanan received a text from [M]other on February
        12, 2019.

        42. FCM Buchanan immediately responded to that text offering
        to meet with Mother.

        43. FCM Buchanan received another text from Mother on
        February 15, 2019.

        44. FCM Buchanan again replied immediately offering to meet,
        but Mother did not respond.

        45. FCM Buchanan continued to attempt to reach out to Mother
        during the month of February, without response.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020   Page 6 of 15
        46. In April of 2019, FCM Buchanan located Mother in the
        White County Jail after conducting an inmate search for her
        whereabouts.

        47. FCM Buchanan met with [M]other in the White County Jail
        on May 2, 2019.

        48. FCM Buchanan made no service referrals for [M]other until
        July of 2019 because either he was not in communication with her
        or she was incarcerated.

        49. In July of 2019, FCM Buchanan made a referral for a
        substance abuse assessment for Mother.

        50. The first setting of the Fact-Finding Hearing in this cause was
        August 15, 2019.

                                              *****

        52. [Mandalyn] Castanon[, a therapist with Meridian Health
        Services Maternal Treatment Program,] completed Mother’s
        substance abuse assessment at the beginning of August 2019.

        53. Ms. Castanon recommended the Maternal Treatment
        Program for Mother to address her substance abuse.

        54. The Maternal Treatment Program consists of both individual
        and group therapy.

        55. Ms. Castanon leads the group therapy component of the
        Maternal Treatment Program.

        56. The first part of group therapy consists of twenty-four (24)
        sessions which meet Monday, Wednesday and Friday.

        57. The second part of group therapy consists of twenty-two (22)
        sessions.

        58. Mother was eligible to attend group sessions beginning on the
        first Monday after her August substance abuse assessment.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020   Page 7 of 15
        59. Mother did not attend group therapy sessions in either August
        or September of 2019.

        60. In October of 2019, Mother participated in two (2) sessions of
        the first part of group therapy.

        61. Ms. Castanon has attempted [to place] Mother in more group
        therapy.

                                              *****

        63. [Kenzie] Troxell[, a therapist with Meridian Health Services
        Maternal Treatment Program,] was assigned to provide individual
        therapy services to [M]other on August 13, 2019.

        64. Ms. Troxell attempted unsuccessfully to contact [M]other
        three times by telephone beginning on August 14, 2019.

        65. Ms. Troxell was unable to arrange an individual therapy
        session with [M]other until mid-September of 2019.

        66. At this first session, Ms. Troxell set a weekly therapy
        appointment with Mother.

        67. Mother failed to appear for the first Monday appointment
        with Ms. Troxell.

        68. Mother has participated in three (3) appointments with Ms.
        Troxell since her first session in mid-September of 2019.

        69. Ms. Troxell is still in the rapport-building stage with Mother
        and has yet to be able to work on any treatment goals.

        70. The January 22, 2018 Dispositional Order, the May 7, 2018
        Order Approving Permanency Plan, the November 5, 2018 Order
        on Periodic Case Review and the May 13, 2019 Order Approving
        Permanency Plan each provided that Mother may resume
        supervised visitation with the child if she complied with services
        and provided negative drug screens.


Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020   Page 8 of 15
        71. Mother did not meet these requirements until August of 2019.

        72. Mother visited the child on two occasions between October of
        2017 and August of 2019.

        73. On August 23, 2019, Mother visited with the child for the first
        time since 2017.

        74. Mother submitted to a drug screen on August 23, 2019, which
        was positive for methamphetamine.

        75. Since the beginning of September of 2019, Mother has visited
        with the child and has submitted clean drug screens.

        76. Mother has recently obtained employment at a call center.

        77. Mother resides with her father.

                                              *****

        79. [Selena] McKibben[, a therapist with Centerstone,] has been
        providing therapy services to the child since August of 2017.

        80. Treatment goals for the child include eliminating or lowering
        depressive symptoms, regulating and communicating emotions,
        and developing positive coping skills.

        81. The child has made progress in treatment and is showing less
        depressive symptoms, communicating more effectively and
        demonstrating positive coping skills.

        82. That the child needs a safe, stable, secure and permanent
        environment in order to thrive. [Mother] has not shown the
        inclination or the ability to provide the child with such an
        environment and has not demonstrated that she is able to provide
        a home free of abuse or neglect for the child. The court has
        considered Mother’s recent engagement in services, negative drug
        screens, housing and employment . . . . Accordingly, evidence of
        Mother’s criminal history, history of substance abuse, failure to
        provide support, failure to demonstrate stable housing or

Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020   Page 9 of 15
              employment and failure to visit with the child for nearly two years
              are all factors that support termination of Mother’s parental rights.


      Appellant’s Appendix Volume II at 84-87. The court found there was a

      reasonable probability that the conditions that resulted in the child’s removal

      and/or continued placement outside the home will not be remedied and that it

      is in the best interest of the child to terminate the Mother’s parental rights.


                                                   Discussion

[6]   In order to terminate a parent-child relationship, DCS is required to allege and

      prove, among other things:


              (B) that one (1) of the following is true:

                       (i) There is a reasonable probability that the conditions
                       that resulted in the child’s removal or the reasons for
                       placement outside the home of the parents will not be
                       remedied.

                       (ii) There is a reasonable probability that the continuation
                       of the parent-child relationship poses a threat to the well-
                       being of the child.

                       (iii) The child has, on two (2) separate occasions, been
                       adjudicated a child in need of services;

              (C) that termination is in the best interests of the child; and

              (D) that there is a satisfactory plan for the care and treatment of
              the child.


      Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition

      described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020    Page 10 of 15
      child relationship. Ind. Code § 31-35-2-8(a). A finding in a proceeding to

      terminate parental rights must be based upon clear and convincing evidence.

      Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the

      credibility of witnesses, but consider only the evidence that supports the

      judgment and the reasonable inferences to be drawn from the evidence. In re

      E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps:

      whether the evidence clearly and convincingly supports the findings, and then

      whether the findings clearly and convincingly support the judgment. Id.

      Reviewing whether the evidence “clearly and convincingly” supports the

      findings, or the findings “clearly and convincingly” support the judgment, is not

      a license to reweigh the evidence. Id. Our review must give due regard to the

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

      not set aside its findings or judgment unless clearly erroneous. Id. “Because a

      case that seems close on a ‘dry record’ may have been much more clear-cut in

      person, we must be careful not to substitute our judgment for the trial court

      when reviewing the sufficiency of the evidence.” Id. at 640. The involuntary

      termination statute is written in the disjunctive and requires proof of only one of

      the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).


[7]   Mother argues she has addressed and remedied the issues of substance abuse

      that were identified by DCS as the conditions which resulted in removal. She

      contends that she “began to realize what she was going to lose,” was clean after

      she was released from jail, participates in random drug screens, has

      employment, participates in visitation, participates in the MTP program and


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020   Page 11 of 15
      counseling at Meridian Health Services, and has maintained sobriety.

      Appellant’s Brief at 14.


[8]   In determining whether the conditions that resulted in a child’s removal will not

      be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at 642-643.

      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. Id. at 643. In the second step, the trial 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. Id. We entrust that delicate

      balance to the trial court, which has discretion to weigh a parent’s prior history

      more heavily than efforts made only shortly before termination. Id. Requiring

      trial courts to give due regard to changed conditions does not preclude them

      from finding that a parent’s past behavior is the best predictor of future

      behavior. Id. The statute does not simply focus on the initial basis for a child’s

      removal for purposes of determining whether a parent’s rights should be

      terminated, but also those bases resulting in the continued placement outside

      the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may

      consider evidence of a parent’s drug abuse, history of neglect, failure to provide

      support, lack of adequate housing and employment, and the services offered by

      DCS and the parent’s response to those services. Id. Where there are only

      temporary improvements and the pattern of conduct shows no overall progress,


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020   Page 12 of 15
       the court might reasonably find that under the circumstances the problematic

       situation will not improve. Id.


[9]    To the extent Mother does not challenge certain findings of fact, the

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied.


[10]   The record reveals that N.G. was removed the same day that DCS filed a petition

       alleging she had been tardy to school on forty-eight occasions and absent fifteen

       days during the school year and that Mother used marijuana, amphetamine, and

       methamphetamine and used illicit substances while serving as N.G.’s primary

       caregiver. Mother used illicit substances every day from early 2017 until her

       incarceration in March 2019 for burglary as a level 4 felony, and her August 23,

       2019 drug screen was positive for methamphetamine. Although we observe

       Mother’s recent efforts in attending and participating in group and individual

       therapy for substance abuse beginning in mid-September 2019, we note the trial

       court is given discretion in balancing her efforts at improvement prior to

       termination against the habitual patterns of her conduct and in determining that

       the evidence of Mother’s prior history is the best predictor of her future behavior.

       See K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office, 989 N.E.2d 1225, 1234

       (Ind. 2013) (“Further, the trial court was within its discretion to ‘disregard the

       efforts Mother made only shortly before termination and to weigh more heavily

       Mother’s history of conduct prior to those efforts.’”). In light of the unchallenged

       findings and evidence set forth above and in the record, we cannot say the trial

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020   Page 13 of 15
       court clearly erred in finding that a reasonable probability exists that the

       conditions resulting in N.G.’s removal or the reasons for placement outside

       Mother’s care will not be remedied.


[11]   In determining the best interests of a child, the trial court is required to look

       beyond the factors identified by DCS and to the totality of the evidence.

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

       App. 2003). In so doing, the court must subordinate the interests of the parent

       to those of the child. Id. The court need not wait until a child is irreversibly

       harmed before terminating the parent-child relationship. Id. Moreover, the

       recommendations by both the case manager and child advocate to terminate

       parental rights, in addition to evidence that the conditions resulting in removal

       will not be remedied, is sufficient to show by clear and convincing evidence that

       termination is in a child's best interests. A.D.S. v. Ind. Dep’t of Child Servs., 987

       N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied. The CASA testified

       that Mother’s sobriety would be difficult to maintain and it was reasonable to

       expect long-term recovery, would be “still quite a long time in the making” and

       “not a sure thing.” Transcript Volume II at 103. The CASA agreed with the

       termination recommendation and asked the court to grant DCS’s petition to

       terminate Mother’s rights. Based on the testimony, as well as the totality of the

       evidence as set forth in the record and termination order, we conclude that clear

       and convincing evidence supports the trial court’s determination that

       termination is in N.G.’s best interests.


[12]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020   Page 14 of 15
Najam, J., and Kirsch, J. concur.




Court of Appeals of Indiana | Memorandum Decision 20A-JT-60 |July 22, 2020   Page 15 of 15
