MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                   Apr 20 2016, 8:41 am
Memorandum Decision shall not be regarded
as precedent or cited before any court except                           CLERK
                                                                    Indiana Supreme Court
for the purpose of establishing the defense of                         Court of Appeals
                                                                         and Tax Court
res judicata, collateral estoppel, or the law of
the case.


ATTORNEY FOR APPELLANT-FATHER                             ATTORNEYS FOR APPELLEE
Jane Ann Noblitt                                          Gregory F. Zoeller
Columbus, Indiana                                         Attorney General of Indiana
ATTORNEYS FOR APPELLANT-MOTHER
                                                          Robert J. Henke
R. Patrick Magrath                                        James D. Boyer
Laura Raiman                                              Deputy Attorneys General
Alcorn Sage Schwartz & Magrath, LLP                       Indianapolis, Indiana
Madison, Indiana



                                           IN THE
      COURT OF APPEALS OF INDIANA
In The Termination Of The Parent-                         April 20, 2016
Child Relationship Of: D.W. & L.B.,                       Court of Appeals Case No.
(Minor Children),                                         03A01-1508-JT-1165
                                                          Appeal from the Bartholomew Circuit
and                                                       Court
                                                          The Honorable Stephen R. Heimann,
C.W. (Mother) & A.W. (Father),                            Judge
Appellants-Respondents,
                                                          The Honorable Heather M. Mollo,
        v.                                                Magistrate
                                                          Trial Court Cause Nos.
The Indiana Department of Child                           03C01-1409-JT-4218
Services,                                                 03C01-1409-JT-4220
Appellee-Petitioner.




Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016       Page 1 of 25
[1]   In this consolidated appeal, C.W. (“Mother”) appeals the involuntary

      termination of her parental rights with respect to her children, D.W. and L.B.,

      (the “Children”), and A.W. (“Father”) appeals the involuntary termination of

      his parental rights with respect to his child, D.W. The issue is whether the

      evidence is sufficient to support the termination of their respective parental

      rights. We affirm.


                                         Facts and Procedural History

[2]   Mother is the biological mother of, S.B., born February 11, 2003, L.B., born

      October 11, 2009, and D.W., born December 16, 2010. Father is the biological

      father of D.W.1 On September 25, 2012, the Indiana Department of Child

      Services (“DCS”) received a report regarding marijuana use and drug

      paraphernalia in the home where S.B., L.B., and D.W. were residing. Mother

      told DCS that Father had been recently incarcerated on charges of dealing

      marijuana and that she was on probation, and an individual providing care for

      the children also admitted to using marijuana while watching them.


[3]   As a result of the report, on October 1, 2012, Mother agreed to an informal

      adjustment.2 On October 4, 2012, the results of a drug screen showed that

      Mother tested positive for THC, amphetamine and methamphetamine, and




      1
        The biological father of S.B. and L.B. signed a consent to the adoption of L.B., did not appear at the
      termination hearing, and is not appealing the termination of his parental rights.
      2
        An informal adjustment is a negotiated agreement between a family and a local DCS office in which the
      family agrees to participate in various services in an effort to prevent the child or children from being
      formally deemed a child or children in need of services. See Ind. Code §§ 31-34-8.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016              Page 2 of 25
      DCS removed the children from the home. The next day DCS filed a petition

      alleging S.B., L.B., and D.W. were children in need of services (“CHINS”) on

      the basis of Mother’s drug use and the drug use history of Mother and Father.

      On November 2 and 6, 2012, DCS learned of allegations of domestic violence

      between Mother and Father.


[4]   Based upon the admissions of Mother and Father, on December 20, 2012, the

      court adjudicated S.B., L.B., and D.W. to be CHINS, 3 held a dispositional

      hearing that same day, and ordered Mother and Father to participate in home-

      based care management, comply with all probation terms and services, submit

      to random drug and alcohol screens, attend all scheduled visitations with the

      Children, and comply with all rules and procedures. Separately, Mother was

      ordered to successfully complete a twelve-step recovery program and obtain a

      recovery coach, participate in individual therapy, complete an assessment for

      Moving On, and follow all recommendations. Father was ordered to

      participate in a substance abuse assessment, follow all recommendations, and

      participate in the SAFE program, a domestic violence services program, as a

      part of his probation.


[5]   On October 29, 2012, Father underwent a substance abuse evaluation at

      Centerstone. DCS referred Mother to drug treatment services at Centerstone,

      including an intensive outpatient program (“IOP”) and group and individual



      3
       S.B., who is Mother’s eldest child, had his CHINS case dismissed in July 2013 when his paternal
      grandmother obtained guardianship over him, and is not a subject of this appeal.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016          Page 3 of 25
      therapy to help her with depression and anxiety. Mother was initially

      compliant but had a relapse with marijuana and methamphetamine in January

      2013, prior to completing the IOP, and was referred for follow-up treatment at

      Tara Treatment Center. In March 2013, Father was unsuccessfully discharged

      from his drug treatment program because he failed to document his AA and

      NA meetings correctly, threatened service providers at Centerstone, and was

      thought to have been responsible for graffiti in the restroom near the facility.


[6]   At review hearings on March 19 and 26, 2013, the court found that Mother had

      partially complied with services and that Father was not in full compliance with

      D.W.’s case plan and had not enhanced his ability as a parent. On March 25,

      2013, Father was convicted of possession of marijuana as a class D felony, a

      charge he had reported to DCS in October 2012. In April 2013, he began but

      did not complete another drug treatment program. He also participated in

      aftercare but did not obtain a sponsor for his recovery and was not forthright

      with the service providers on this issue.


[7]   On June 23, 2013, DCS received a report of a domestic violence incident

      involving Mother and Father, which resulted in the parties’ brief separation,

      and Father, who has suffered from bipolar disorder since he was eighteen years

      old, checked himself into the Columbus Regional Stress Center due to suicidal

      ideations. He was given a mood stabilizer and medication to help manage his

      depression, a seizure disorder, and high blood pressure, and he began the SAFE

      program for a second time. The next month, Mother completed the IOP

      program, maintaining consistent attendance throughout. On September 12,

      Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 4 of 25
      2013, the court conducted a permanency hearing and found that Mother and

      Father were partially compliant with the Children’s case plans and ordered

      concurrent plans of reunification and guardianship. Mother completed an

      aftercare program in October 2013, and throughout her participation in both the

      IOP and aftercare she produced twelve negative drug screens.


[8]   The following month, DCS recommended that Father undergo a parenting

      assessment and a psychological evaluation to assess his mental health and level

      of risk for violence. He completed the SAFE program but on November 16,

      2013, came to Mother’s place of employment and, following a verbal argument,

      slammed her head into a filing cabinet causing a periorbital contusion. He was

      arrested, later pled guilty to interfering with reporting a crime, and Mother filed

      for a protective order, which was granted.


[9]   At a status hearing on December 17, 2013, the court found that Mother was

      partially compliant and Father was noncompliant with the Children’s case

      plans. On February 19, 2014, Mother tested positive for methamphetamine and

      amphetamine. On March 4, 2014, the court held a review hearing, found that

      both parents were noncompliant, and ended DCS’s provision of services due to

      indications from Mother and Father that they were supportive of guardianship

      as the permanency plan for the Children. Two days later, Mother filed a

      request for dismissal of the protective order against Father, and it was dismissed

      on March 10, 2014. In May 2014, Mother and Father expressed their desire to

      seek reunification rather than guardianship as a permanency plan. The next



      Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 5 of 25
       month, Father was arrested for his involvement in an altercation with his father

       and was in Brown County Jail until his release in August 2014.


[10]   On September 16, 2014, DCS filed a petition for termination of parental rights,

       and the court held a termination hearing on January 9, 2015. Testimony was

       given by Danielle Fawbush, an assessment worker for DCS, Zach Shelton, a

       family case manager, from December 20, 2012 through April 2013, Beth

       Gruenewald, Joy Stagg, and Ashley Pulskamp, addictions therapists at

       Centerstone, Keith Simpson, a Bartholomew County community corrections

       officer assigned to Father, Lee Hamlin, a clinical therapist at Family Service,

       Jessica Jester, a family case manager (“FCM Jester”), Craig Lubbe, a substance

       use counselor at Adult and Child, Kelly Richards, Mother’s recovery coach,

       Betsy Schuette, the Children’s court appointed special advocate (“CASA

       Schuette”), Father, and Mother.


[11]   On July 22, 2015, the court issued separate orders terminating the parental

       rights of Mother and Father. Both orders made detailed findings of fact and

       concluded that there is a reasonable probability that the conditions which

       resulted in the Children’s removal and continued placement outside the home

       will not be remedied, that continuation of the parent-child relationship poses a

       threat to the Children’s well-being, that termination of the parental rights of

       Mother and Father was in the Children’s best interests, and that adoption is a

       satisfactory plan for the Children.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 6 of 25
                                                    Discussion

[12]   The issue is whether the evidence is sufficient to support the termination of the

       respective parental rights of Mother and Father. In order to terminate a parent-

       child relationship, DCS is required to allege and prove, among other things:


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


                        (i) The child has been removed from the parent for at least
                        six (6) months under a dispositional decree.


                        (ii) A court has entered a finding under IC 31-34-21-5.6
                        that reasonable efforts for family preservation or
                        reunification are not required, including a description of
                        the court’s finding, the date of the finding, and the manner
                        in which the finding was made.


                        (iii) The child has been removed from the parent and has
                        been under the supervision of a local office or probation
                        department for at least fifteen (15) months of the most
                        recent twenty-two (22) months, beginning with the date
                        the child is removed from the home as a result of the child
                        being alleged to be a child in need of services or a
                        delinquent child;


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


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




       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 7 of 25
                        (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-

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


[13]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social

       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. “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.” Id. (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592


       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 8 of 25
       N.E.2d 1232, 1235 (Ind. 1992)). “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.


[14]   “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. “[W]e do not independently determine

       whether that heightened standard is met, as we would under the ‘constitutional

       harmless error standard,’ which requires the reviewing court itself to ‘be

       sufficiently confident to declare the error harmless beyond a reasonable doubt.’”

       Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

       California, 386 U.S. 18, 87 S. Ct. 824 (1967), reh’g denied). “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. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office,

       989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “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.


                                            Remedy of Conditions

[15]   We note that 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). Because we find it to be dispositive under the facts of this case, we

       limit our review to whether DCS established that there was a reasonable
       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 9 of 25
       probability that the conditions resulting in the removal or reasons for placement

       of the Children outside the home will not be remedied. See Ind. Code § 31-35-2-

       4(b)(2)(B)(i).


[16]   In determining whether the conditions that resulted in the Children’s removal

       will not be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d at

       642-643. 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 and 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 parents’ past behavior is the best predictor of

       their future behavior. Id.


[17]   In making such a determination, the 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 N.Q., 996 N.E.2d 385, 392

       (Ind. Ct. App. 2013). Due to the permanent effect of termination, the trial court

       also must evaluate the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of the child. Id. “The statute does

       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 10 of 25
       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.” Id. (citation and

       internal quotation marks omitted). A court may properly consider 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. Id.

       A trial court can reasonably consider the services offered by DCS to the parent

       and the parent’s response to those services. Id. Further, where there are only

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

       the court might reasonably find that under the circumstances, the problematic

       situation will not improve. Id. A trial court need not wait until a child is

       irreversibly influenced by a deficient lifestyle such that his or her physical,

       mental, and social growth are permanently impaired before terminating the

       parent-child relationship. In re Z.C., 13 N.E.3d 464, 469 (Ind. Ct. App. 2014),

       trans. denied.


[18]   The trial court’s termination orders addressed the participation of both Mother

       and Father in therapy and services. Specifically, the court entered substantially

       similar separate orders with respect to D.W. and L.B. and in the order related

       to D.W. contained findings consistent with the foregoing and further found:


               4. In March 2013, Mother dropped the Protective Order against
               Father.


               5. In March 2013, Mother was also recommended for in-patient
               treatment for her substance abuse.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 11 of 25
        6. Mother successfully completed inpatient substance treatment
        at Tara Treatment Center at the beginning of May 2013 with
        discharge recommendations for outpatient substance treatment
        along with meeting with a recovery coach.


                                              *****


        12. Father received a second referral for substance abuse
        evaluation with Adult and Child. He was recommended for
        IOP; during the evaluation interview, Father reported an
        extensive history of marijuana use starting at age eleven and
        reported periods of time in which he was also dealing drugs.


        13. Father was unable to successfully complete IOP with Adult
        and Child due to concerns again that Father was not invested in
        finding recommended community sobriety supports . . . . Adult
        and Child had no contact with Father after November 2013. He
        was unsuccessfully discharged in February 2014.


        14. The addictions clinician had ongoing concerns for Father at
        discharge. The chances of Father staying clean and sober are
        diminished without a sober support system. Although
        completion of a re-lapse prevention program may have benefit, it
        is time limited in nature and cannot replace the long-term nature
        of sober supports.


        15. DCS also believed the community sober supports were
        important for Father. He was asked to invite a sober support to a
        child and family team meeting. He failed to do so.


        16. Father testified at trial that he will soon complete a re-lapse
        prevention class. He also reports attending weekly meetings. He
        has not documented these activities for DCS.



Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 12 of 25
        17. Through much of the underlying CHINS case, there
        continued to be concerns of domestic discord between Mother
        and Father. Information was disclosed to family case manager
        Jessica Jester of further incidents of domestic violence.


        18. From the outset of the assessment of the CHINS case,
        Mother could acknowledge that there was some concern with
        Father’s interaction with the children in the home. In addition to
        [D.W.], there were two older siblings in the home, who were also
        adjudicated as Children In Need of Services simultaneously with
        [D.W.]. Mother witnessed controlling behaviors by Father in his
        care and supervision of the children, especially the oldest, [S.B.].
        Father was belittling at times and threatening in his remarks to
        the children.


        19. [S.B.] clearly recalls the destruction of property during
        conflict between the parents. He witnessed Mother being
        physically injured by Father. He also disclosed that he was
        physically injured by Father. It was an acknowledged fact by the
        treatment team at Centerstone that [S.B.] had been duct taped to
        a chair by Father.


        20. In one of the initial meetings between Mother and
        Centerstone, Mother relayed another earlier incident where she
        had been confined by Father in a bathroom and he had taken her
        cell phone.


        21. By the time Mother was released from Tara in May 2013,
        she was again in a relationship with Father.


        22. Services were identified to address the domestic violence
        concerns. Upon her release from Tara, Mother was referred to
        Moving On, a women’s cognitive behavioral program designed
        to help women make safe decision[s] for themselves and develop
        healthy coping strategies. Mother was also expected to attend

Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 13 of 25
        individual counseling coordinated with the same agency
        conducting the Moving On program. Mother was unsuccessfully
        discharged from both due to poor attendance.


        23. By a June 2013 Status Hearing, Father had volunteered to
        participate in the SAFE program, a domestic battery prevention
        program, through Bartholomew County Probation. By the June
        hearing, the Court had been presented with evidence of
        significant trauma to [S.B.]. In particular, through [S.B.’s]
        CHINS case there was evidence that [S.B.] had suffered
        emotional and physical abuse while in the care of Mother and
        Father. The trauma had been so significant that by June 2013,
        [S.B.] was in a guardianship with a third party and there were
        protective orders in place prohibiting Father from having contact
        with [S.B.]. The past abuse to [S.B.] was relevant to the safety of
        [D.W.]. The Court expected the team to assess whether Father
        had made the necessary changes to some of his core attitudes and
        beliefs such that he would not be a threat to the well-being of
        [D.W.]


                                              *****


        27. Following the November 16, 2013 domestic violence
        incident, Mother memorialized in writing four years of domestic
        violence perpetrated by Father on her and her son [S.B.].


        28. A review of Mother’s account shows a clear pattern of
        Mother leaving Father but returning to an unsafe situation based
        upon the repeated promises of change by Father. The account
        portrays physical and emotional abuse, escalating in severity,
        along with Father isolating and controlling Mother’s conduct.


                                              *****



Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 14 of 25
        30. On February 19, 2014, Father pled guilty to a Class A
        Misdemeanor Interfering with Reporting a Crime, events related
        to November 16, 2013, under Cause Number 03D02-1311-CM-
        6171 in which he was sentenced to one year in Bartholomew
        County jail all suspended, consecutive to his sentence in Cause
        Number 03D02-1210-FD-5248. Father was ordered to comply
        with the No Contact Order in place for Mother, as well as the
        Protective Order.


        31. On February 19, 2014, Father admitted to violating his
        probation under Cause Number 03D02-1210-FD-5248, when he
        was arrested following the domestic violence altercation. The
        Court ordered Father to be in a Community Correction
        placement for the balance of his probation term.


        32. Following the November 2013 incident, Mother reengaged
        in services but began to struggle with attendance at services in
        late December 2013 and by February 2014 was inconsistent with
        visitation. In February, she acknowledged to the family case
        manager that she could not complete her treatment goals in a
        timely manner and was in support of a guardianship for the child.
        On February 26, 2014 Mother provided a positive drug screen for
        methamphetamine and amphetamine.


                                              *****


        34. Mother and Father resumed their relationship in May 2014
        and remain together at the time of this termination trial.


                                              *****


        36. On August 4, 2014, Father admitted to violating his
        probation under Cause Number 03D02-1210-FD-5248 and



Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 15 of 25
        03D02-1311-CM-6171, when he was arrested following a
        domestic altercation in June 2014.


        37. The parents report participating in services on their own, but
        have not engaged in services through DCS referrals since March
        2014.


        38. Father continues to minimize domestic violence with
        Mother. Father never acknowledged his role in the abuse of
        [S.B.].


        39. Mother does not demonstrate the insight or the strength to
        keep herself or her children safe.


        40. Mother participated in visitation with varying consistency.
        She struggled to participate in visitation at times when a relapse
        would occur.


        41. In February 2014, Mother had moved to some unsupervised
        visitation until she had a positive drug screen for
        methamphetamine and amphetamine.


        42. Father participated in visitation sporadically but spent
        varying time incarcerated for substance use or domestic violence
        related incidents.


        43. The current DCS Family Case Manager assigned to this
        case, Jessica Jester, believes that adoption and termination of
        parental rights is in the best interests of [D.W.]. She has ongoing
        concerns that the continuing relationship between Mother and
        Father is a significant risk factor for [D.W.’s] safety due to the
        history of domestic violence.




Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 16 of 25
               44. Betsy Schuette, the Court Appointed Special Advocate for
               [D.W.], agreed that termination of parental rights is in [D.W.’s]
               best interest. The domestic violence perpetrated by Father
               against Mother and Mother’s history of allowing her children to
               be exposed to the same cause the CASA to support termination
               of parental rights. The CASA also filed a written report with the
               Court, which is made a part hereof by reference, and which
               expresses the same sentiment as her testimony.


               45. DCS has not supported reunification since March 4, 2014.


               46. DCS’s plan for [D.W.] is that he be adopted. At time of
               termination, [D.W.] was in a pre-adoptive home with family; the
               plan of adoption is satisfactory for [D.W.’s] care and treatment.


       Appellant-Mother’s Appendix at 12-17; Appellant-Father’s Appendix at 8-13.


[19]   Mother argues that the removal of the Children was based on her drug use and

       concerns related to domestic violence, and she notes that she successfully

       completed an intensive outpatient program as well as aftercare and produced

       twelve negative drug screens. She also points out that she followed up on

       NA/AA meetings on her own after services were discontinued and that the

       record does not support that she has failed to remedy her substance abuse issues

       or that the Children are endangered by her substance abuse. Mother notes that

       she self-reported the June 2013 and November 2013 incidents of domestic

       violence and that there “was never a reported concern” that L.B. or D.W. “had

       ever been directly physically endangered by domestic violence” and that DCS’s

       concern was that the Children would witness domestic violence in the home.

       Appellant-Mother’s Brief at 13. Mother also points out that she and Father

       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 17 of 25
       reunited in May 2014, have been living in the home of Father’s father, which is

       “safe, stable, and drug free,” that she has begun participating, on her own

       initiative and along with Father, in couples counseling, and that her

       relationship with Father has stabilized with the last incident of domestic

       violence occurring on November 16, 2013. Id. (quoting Transcript at 110).


[20]   Father asserts that DCS failed to present clear and convincing evidence that

       conditions had not been remedied or that he posed a threat to D.W., and he

       contends that the court failed to take into account evidence of current

       conditions, relying instead on his history of parental shortcomings as a basis for

       termination. He argues that despite fourteen drug screens during his interaction

       with DCS he tested positive only twice, with the last positive screen occurring

       in January 2013, that at the time of the hearing he was participating in relapse

       prevention services, that the last incident of domestic violence involving he and

       Mother occurred in November 2013, and that he and Mother were participating

       in couples counseling. He also pointed out that at the time of the hearing he

       was paying child support, engaging in regular visitation, and, had a place to live

       and care for D.W., while acknowledging that the home’s suitability was not

       addressed by DCS. He points out that the court’s sole finding related to current

       conditions states “[t]he parents report participating in services on their own, but

       have not engaged in services through DCS referrals since March 2014,” and

       that the court based termination on Father’s history rather than in light of

       current conditions. Appellant-Father’s Brief at 11 (citing Appellant-Father’s

       Appendix at 12).


       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 18 of 25
[21]   DCS maintains that the termination of the parental rights of Mother and Father

       was supported by clear and convincing evidence, and it points out that neither

       Mother nor Father specifically challenges the court’s factual findings, and their

       arguments amount to a request to reweigh the evidence. DCS notes that

       Mother did not fully participate in or complete all the services recommended to

       her, stayed in an abusive relationship after multiple incidents of domestic

       violence involving Father, had inconsistent attendance at visitation with the

       Children, and a lack of stable housing and employment. It further notes, as to

       Father, that he had not completed drug treatment or a recommended

       psychological evaluation. Shortly after Father completed a domestic violence

       class, he abused Mother and minimized his role in the couple’s instances of

       domestic violence. DCS contends that Father lacked stable housing and

       employment and was inconsistent in his visitation. DCS also points out that

       the trial court made findings as to evidence of Father’s current conditions.


[22]   To the extent Mother and Father do not challenge any of the juvenile court’s

       findings of fact, these 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; McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct.

       App. 1997) (when the father failed to challenge specific findings, the court

       accepted them as true).


[23]   The Children were removed from the care of Mother and Father due to

       Mother’s drug use and the drug use history of Mother and Father. Shortly after

       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 19 of 25
removal, DCS became aware of reports of domestic violence perpetrated by

Father against Mother. Regarding both substance abuse and domestic violence,

the court found that neither Mother nor Father completed all of the

recommended services, including substance abuse treatment and therapy, and

that the instances of domestic violence by Father against Mother were not

remedied even after Father completed a domestic violence program and was on

mood stabilizing medication. Over the course of the CHINS case, visitation

with the Children was inconsistent, and, in Father’s case, interrupted by periods

of incarceration for substance use and domestic violence. Additionally, the

court found that at the time of the termination hearing Father continued to

downplay his role in the couple’s domestic violence and that, even after the

provision of services, Mother lacked the insight to protect herself or the

Children from Father’s violent outbursts against her. At the time of the

hearing, Father had not obtained employment but was receiving disability and

testified that he was pursuing employment with Toyota through a placement

service, while Mother was employed at a local flea market stand Father’s father

operated, making approximately $50 per day. Mother and Father were residing

at the home of Father’s father, which DCS had not assessed for suitability at the

time of the termination hearing because FCM Jester noted that she did not

know “how stable it is, just because I don’t know very much about the

dynamics of the relationship between [Father] and his dad either.” Transcript

at 110. As to Mother’s completion of the goals of her case plan, FCM Jester

stated that “there are significant pieces of the case plan goals that were not

completed,” including “not being able to complete Moving On or the individual
Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 20 of 25
       counseling. . . .” Id. at 98. FCM Jester acknowledged that Father completed a

       substance use evaluation while she had the case, but participated in services at

       Adult and Child inconsistently, had a relapse with alcohol, failed to obtain an

       NA/AA sponsor and later lied about having obtained one, and she stated that

       she did not “think that [she] could say that the domestic violence issue, or

       concern has been remedied.” Id. at 112. The court also found that neither

       Mother nor Father provided documentation of the services they represented

       they were participating in at the time of the termination hearing.


[24]   To the extent Mother and Father assert that the court failed to take current or

       changed conditions into account, we note that it found that, at the time of the

       termination hearing, Father continued to minimize his role in domestic

       violence against Mother and her eldest child, S.B., and that while Mother and

       Father stated they were participating in services they had not documented their

       participation. Moreover, the court noted that Mother appeared to be unable to

       “demonstrate the insight or the strength to keep herself or her children safe.”

       Appellant-Mother’s Appendix at 16. Consequently, we cannot say that the

       court failed to consider the efforts made by Mother and Father to remedy

       conditions at the time of the termination hearing, or balance evidence of

       changed conditions with their habitual patterns of conduct. See In re E.M., 4

       N.E.3d at 643 (noting that it is within the trial court’s discretion to weigh a

       parent’s prior history more heavily than efforts made only shortly before

       termination).




       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 21 of 25
[25]   Based upon the court’s findings and the record, we conclude that clear and

       convincing evidence supports the trial court’s determination that there is a

       reasonable probability that the conditions leading to the Children’s removal will

       not be remedied.4


                                                       Best Interests

[26]   We next consider Father’s assertion that DCS did not present clear and

       convincing evidence that termination was in D.W.’s best interest.5 Father

       argues that his visitation with D.W. was going well, that there was no evidence

       he had ever been physically violent or ever threatened D.W. or that D.W.

       witnessed any domestic violence, and that there were no findings as to Father’s

       relationship with D.W., the effect on D.W. when Father’s visits are terminated,




       4
        To the extent Mother and Father cite to In re Ma.J., 972 N.E.2d 394 (Ind. Ct. App. 2012), and In re C.M.,
       960 N.E.2d 169 (Ind. Ct. App. 2011), aff’d on reh’g, 963 N.E.2d 528 (Ind. Ct. App. 2012), we find those cases
       distinguishable. Unlike the mother in In re Ma.J., who made progress in areas of concern, neither Mother nor
       Father had completed their recommended services at the time of the termination hearing, including therapy,
       substance use counseling, regular attendance at scheduled visitation, domestic violence services, and
       maintaining stable and consistent housing and employment. Also, the court here, unlike the court in In re
       C.M., made findings related to current conditions, which showed that Father had not completed the goals of
       his case plan and that he was participating in services at the time of the hearing but had not yet
       acknowledged and tended to minimize his role in domestic violence against Mother.
       5
         Mother asserts that “[a]doption was not a necessary permanency goal for the children . . . .” Appellant-
       Mother’s Brief at 14. To the extent she argues that DCS failed to present a satisfactory plan at the
       termination hearing, we note that she does not develop an argument that adoption was not a satisfactory plan
       of care or treatment. We cannot say that DCS failed to present a satisfactory plan for care and treatment of
       the Children. See In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014) (noting that for a plan to be
       “satisfactory” for the purposes of the termination, it “need not be detailed, so long as it offers a general sense
       of the direction in which the child will be going after the parent-child relationship is terminated”) (quoting
       Lang v. Starke Cnty. Office of Family and Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007), trans. denied), trans.
       denied.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016                Page 22 of 25
       how D.W. is faring in his current placement, and the reason his current

       placement is in his best interests.


[27]   We are mindful that in determining what is in 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 Cnty. 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 children. Id. The court need not wait

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

       relationship. Id. Children have a paramount need for permanency which the

       Indiana Supreme Court has called a central consideration in determining the

       child’s best interests. In re E.M., 4 N.E.3d at 647-648. However, “focusing on

       permanency, standing alone, would impermissibly invert the best-interests

       inquiry . . . .” Id. at 648. This court has previously held that the

       recommendation 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 the 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.


[28]   At the termination hearing, FCM Jester testified that termination was in D.W.’s

       best interest because he was doing well in his adoptive home, and there

       continued to be domestic violence concerns in that shortly after Father

       completed the SAFE program he committed an act of domestic violence against

       Mother. Also, CASA Schuette, when asked whether it was in D.W.’s best

       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 23 of 25
interest to be returned to Mother and Father, testified that she believed

“termination is in the best interest for the children. Where they are now, they

have been, they have the stability, they’re thriving.” Transcript at 154-155.

CASA Schuette observed both Children’s behavior and interaction and testified:


        When I first met [the Children], they seemed to be pretty behind
        in their development, and behavioral issues. There was a lot of
        very concerning behavioral issues. The [Children] were quite
        violent, violent in a way that it was, they thought it just playing
        and normal. One of them, I believe it was [L.B.], that had a look
        like, that was funny. [The Children] did bite each other quite a
        bit, then. And then another visit, he had climbed in my lap and
        did a choking, like he didn’t actually hurt me, but he was, like
        choking me, and in a way where, looking me square on in the
        eyes and it, that was okay. That was very concerning for me.


Id. at 152. CASA Schuette also stated in her report that Father’s lack of

commitment to and completion of services, lack of contact with the service

providers and DCS workers, multiple incarcerations, domestic violence, and

pattern of instability due to the parties’ domestic disputes provide further

support that termination is in D.W.’s best interest. Based on this testimony, as

well as the totality of the evidence in the record and set forth in the court’s

termination orders, including Father’s failure to complete all recommended

services, his failure to accept responsibility for acts of domestic violence against

Mother, and his inability to acknowledge his role in the abuse of Mother’s

eldest child, S.B, we conclude that the court’s determination that termination

was in D.W.’s best interest is supported by clear and convincing evidence. See

In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013) (observing that

Court of Appeals of Indiana | Memorandum Decision 03A01-1508-JT-1165 | April 20, 2016   Page 24 of 25
       “[r]ecommendations of the case manager . . . in addition to evidence the

       conditions resulting in removal will not be remedied, are sufficient to show by

       clear and convincing evidence that termination is in the child’s best interests”),

       reh’g denied.


                                                    Conclusion

[29]   We conclude that the trial court’s judgment terminating the parental rights of

       Mother and Father is supported by clear and convincing evidence. We find no

       error and affirm.


[30]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




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