MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Oct 11 2018, 10:45 am
this Memorandum Decision shall not be
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
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Madison, Indiana                                          Attorney General of Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Termination of the                              October 11, 2018
Parent-Child Relationship of:                             Court of Appeals Case No.
                                                          18A-JT-634
N.R., A.R., and M.R. (Minor
Children)                                                 Appeal from the Jackson Superior
                                                          Court
and
                                                          The Honorable Bruce A.
J.B.,                                                     MacTavish, Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          36D02-1709-JT-41
        v.                                                36D02-1709-JT-42
                                                          36D02-1709-JT-43
The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018                 Page 1 of 15
      Tavitas, Judge.


                                                 Case Summary
[1]   J.B. (“Mother”) appeals the termination of her parental rights to N.R., A.R.,

      and M.R. (the “Children”). We affirm.


                                                          Issue
[2]   Mother raises one issue, which we restate as whether the evidence is sufficient

      to support the termination of her parental rights.


                                                         Facts 1
[3]   On April 24, 2015, Mother resided and worked in the Jackson County Econo-

      Lodge hotel. DCS received an allegation that Mother neglected the Children

      and abandoned the Children in the care of a stranger. The Jefferson County

      Department of Child Services (“DCS”) removed the Children from Mother on

      an emergency basis due to allegations of neglect and abandonment.


[4]   The trial court conducted a detention hearing on April 27, 2015. That same

      day, DCS filed Child in Need of Services (“CHINS”) petitions regarding the

      Children, and the trial court found that continued detention was in the

      Children’s best interests. On July 15, 2015, the trial court adjudicated the

      Children as CHINS due to Mother’s substance abuse and based on “Mother’s




      1
       The trial court also terminated the parental rights of the Children’s father, L.R. L.R. is not a party to this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018                      Page 2 of 15
      admission that the children were in need of services due to the instability,

      including housing instability, within the family[.]” App. Vol. II p. 92.


[5]   Pursuant to the dispositional order, Mother was ordered to: (1) maintain safe

      and stable housing; (2) obtain legal and consistent employment; (3) refrain from

      illegal drug use; (4) undergo a substance abuse evaluation; (5) regularly submit

      to random drug screens; (6) address her substance abuse issues; and (7)

      participate in supervised visits with the Children. DCS referred Mother to

      home-based individual and family therapy for counseling aimed at addressing

      Mother’s housing, employment, and parenting issues, for a substance abuse

      assessment, and for drug screening.


[6]   Mother made minimal progress in complying with the dispositional order.

      Mother failed to secure and maintain steady housing; tested positive for various

      illegal substances; failed to maintain consistent employment; failed to regularly

      submit to drug testing; and failed to timely undergo a substance abuse

      evaluation, despite multiple referrals. Mother participated in supervised

      visitation; however, her participation was inconsistent.


[7]   On September 7, 2017, DCS filed a petition to terminate Mother’s parental

      relationship with the Children. On January 8, 2018, the trial court conducted a

      fact-finding hearing. At the time of the hearing, Mother was incarcerated on a

      failure to appear warrant stemming from an arrest for conversion.


[8]   At the termination hearing, Mother testified that she was never homeless during

      the wardship and “always had somewhere to go”; and that she “stay[ed] with

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 3 of 15
       friends” or lived with her husband’s sister. Tr. Vol. II p. 11. Mother testified

       that, at the time of the fact-finding hearing, she and her husband were living in

       a newly-rented apartment and had resided there for three weeks. Mother also

       testified that she had two part-time jobs.


[9]    Mother admitted that she failed some drug screens and tested positive for

       methamphetamine and cocaine during the proceedings. Mother also testified

       that she undertook personal and religious counseling, consulted with her

       physician, and eventually completed a substance abuse assessment in

       Indianapolis. According to Mother, her counselors advised that “[she] didn’t

       need to do the drug assessment” and that she did not have a mental problem

       but, rather, she developed post-traumatic stress disorder, insomnia, and

       nightmares following the Children’s removal. Id. at 16.


[10]   Mother testified that she actively participated in supervised visitation, but cited

       transportation challenges, health issues, work schedule concerns, and

       incarceration as reasons for her missed occasional visits. Mother also testified

       that her PTSD and depression are under control; and that she “only started

       methamphetamines [ ] because [she] didn’t have [her] kids” and “never did

       drugs before all of this[.]” Id. at 126. Mother testified further that she

       completed a substance abuse assessment shortly before the fact-finding hearing.

       Lastly, Mother testified that, notwithstanding her incarceration at the time of

       the fact-finding hearing, she and her husband had obtained housing and she

       was employed, such that she (or, to be precise, her husband) could take

       immediate custody of the Children.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 4 of 15
[11]   The State called DCS family case manager, Kayla Hardin, who testified as

       follows: at the time of removal, Mother lacked stable housing, was

       unemployed, and “test[ed] positive for illegal substances.” Id. at 23. From

       April 2015 to September 2016, Mother failed to verify employment and failed

       to keep DCS apprised of her housing and employment status. Mother “would

       say that she was employed somewhere but would never provide verification of

       employment.” Id. Hardin testified that Mother’s housing instability did not

       improve during wardship and that, at best, Mother maintained an apartment for

       a two-month period in 2016, but was subsequently evicted following an April

       2016 arrest.


[12]   Hardin also testified that DCS was aware of Mother’s significant transportation

       challenges and had advised Mother that “[t]he home-based case management

       [program] could have . . . address[ed]” Mother’s transportation needs, but

       Mother did not fully avail herself of DCS’s assistance. Id. at 37. Although

       “Mother did utilize some service[s],” Hardin testified that Mother’s

       participation was inconsistent and that the case management service provider

       ultimately suspended Mother’s services for noncompliance.


[13]   Additionally, Hardin testified that Mother was referred for substance abuse

       assessments in March 2016 and January 2017. Mother was discharged for

       noncompliance by the service provider in June 2017. Mother was again

       referred for a substance abuse assessment in August 2017 and completed it in

       September 2017; however, Mother failed to comply with the service provider’s

       resulting recommendations, as Hardin explained in the following testimony:

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 5 of 15
               [Mother] was recommended for addiction [ ] program group and
               treatment two to three-time weekly, individual counseling to
               address her PTSD weekly, case management to occur monthly,
               and medication management umm, and training about
               medication to occur quarterly. [Mother] was referred for the
               addiction program group on September 5th of 2017 and never
               participated.


       Id. at 41-42. Hardin testified that, during the wardship, Mother submitted to

       approximately eight drug screens and failed six; and she tested positive for

       cocaine, tramadol, amphetamine, methamphetamine, oxycodone, and

       morphine.


[14]   Further, Hardin testified that Mother participated in only forty-five minutes of

       individual therapy during the wardship and was discharged for noncompliance

       in June 2016, after Mother brought a knife to a supervised visit. Hardin added

       that Mother attended supervised visitation “about seventy-five percent of the

       time.” Id. at 24. Lastly, Hardin testified that Mother simply “[di]d not ma[k]e

       any progress” toward achieving the case plan goals. Id.


[15]   DCS family case manager, Victoria Fountain, testified that Mother gave DCS

       no reason to believe that Mother could remedy the conditions that resulted in

       the Children’s removal; and that termination of the parent-child relationships

       between Mother and the Children was in the Children’s best interests, stating:


               [Mother] has not been able to provide [the Children] with food,
               clothing, shelter based upon [her] lack of . . . income or proof of
               showing income, lack of housing . . . as well as the behavior that
               she has exhibited.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 6 of 15
       Id. at 49. Fountain testified that the Children “have really thrived having that

       stability in knowing that [they] are going to be cared for” in their foster

       placement, which is a “very loving” and “very structured” household with “set

       rules and consequences.” Id. at 50. The foster parents plan to adopt the

       Children with DCS’s full support.


[16]   Linda Matthews, a home-based caseworker, visitation facilitator, and parenting

       instructor with Seeds of Life, testified that she worked with Mother toward

       reunification. Matthews testified that, although she was occasionally

       “encouraged” by Mother’s efforts, Matthews discharged Mother due to

       Mother’s inconsistency, failure to maintain regular contact, and unavailability.


[17]   Court appointed special advocate (“CASA”), Julie Hirtzel, testified that she has

       served as the Children’s CASA since June 2016 and visits the Children

       monthly. Hirtzel testified that she met Mother once during the wardship,

       received a phone number for Mother, but spent time “after that . . . pretty much

       just chasing [Mother] trying to find a good phone [number].” 2 Id. at 112.

       Hirtzel testified that the Children’s foster placement experience is a far cry from

       the instability the Children experienced with Mother in that the Children are in

       “a very structured environment” in which the Children “know what is expected

       of them.” Id. at 111. Hirtzel testified that, based upon DCS’s reports,

       termination of Mother’s parental rights is in the Children’s best interests.




       2
           Mother testified that she occasionally struggled to pay for cell phone minutes during the wardship.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018                     Page 7 of 15
[18]   Following the hearing, on January 31, 2018, the trial court terminated Mother’s

       parental relationship with the Children and entered, in part, the following

       findings and conclusions of law:


               15. The Mother’s testimony reveals that she has generally
               been unable or unwilling to secure suitable stable housing. For
               the vast majority of the more than two years and eight months
               since the children were detained, she has been unable to secure
               stable housing for herself for more than two or three months, and
               she has failed to ever secure housing that would be appropriate to
               allow her children to live with her.


               16. In her testimony, the Mother claims that she has now
               secured stable and suitable housing despite her being presently
               incarcerated. However, there was no evidence presented to
               support her testimony, and DCS was never presented with an
               opportunity to inspect the premises because the Mother failed to
               notify them of any change in her housing situation prior to the
               present hearing.


               17. The record establishes that the Mother has continued to
               abuse illegal substances for the duration of the underlying
               CHINS cases. DCS presented drug screens showing that the
               Mother tested positive for various illegal substances, including
               methamphetamine, cocaine, oxycodone, and morphine on
               5/13/15, 7/15/15, 12/11/15, 3/4/16, 3/23/16, 8/16/17, and
               10/4/17 . . . .


               18. The Mother has failed to substantially comply with the
               substance abuse services offered by DCS. She was ordered to
               complete a substance abuse assessment and follow any resulting
               recommendations for treatment through the Dispositional
               Decree, and she was initially referred for such an assessment on
               March 23, 2016. However, the Mother did not complete her

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 8 of 15
        substance abuse assessment until September 5, 2017, and has
        failed to participate in any of the treatment and therapy that was
        recommended.


        19. The Mother has failed to secure and maintain a legal and
        stable source of income. The Mother claims to have been
        employed at various times over the last two years, but has only
        provided verification of employment to either DCS or any of her
        service providers for only four weeks for the duration of the
        CHINS cases.


                                              *****


        9.    DCS has proven, by clear and convincing evidence, the
        following:


                 a)     The children were removed from the parents on
                 April 24, 2015, and have remained continuously removed
                 for more than 6 months since the Dispositional Decree
                 was issued on August 5, 2015;


                 b)     The children have been removed from their parents
                 and have been under the supervision of DCS for at least
                 fifteen (15) of the most recent twenty-two (22) months,
                 beginning on the date the children were first removed as a
                 result of being alleged to be CHINS on April 24, 2015[;]


                 c)     There is a reasonable probability that the conditions
                 that resulted in the children’s removal and the reasons for
                 placement outside the home of the parents — namely, the
                 Mother’s failure to secure and maintain stable and suitable
                 housing; the Mother’s failure to secure and maintain a
                 legal and stable source of income; the Mother’s substance



Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 9 of 15
                        abuse issues; and the Father’s inability or unwillingness to
                        provide adequate care — will not be remedied;


                        d)     Termination of the parent-child relationship is in the
                        best interest of these children; and


                        e)     The proposal made by DCS for the children to be
                        adopted by the present foster placement is a satisfactory
                        plan for the care and treatment of the children.


               10. Based on these Findings of Fact and Conclusions of Law,
               the Court is compelled by Ind. Code § 31-35-2-8 to terminate the
               parent-child relationship.


       Id. at pp. 110-111, 112-113. Mother now appeals.


                                                    Analysis
[19]   Mother challenges the termination of her parental relationship with the

       Children. The Fourteenth Amendment to the United States Constitution

       protects the traditional right of parents to establish a home and raise their

       children. In re K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office,

       989 N.E.2d 1225, 1230 (Ind. 2013). “[A] parent’s interest in the upbringing of

       [his or her] child is ‘perhaps the oldest of the fundamental liberty interests

       recognized by th[e] [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

       120 S. Ct. 2054 (2000)). We recognize, of course, that parental interests are not

       absolute and must be subordinated to the child’s interests when determining the

       proper disposition of a petition to terminate parental rights. Id. Thus,

       “‘[p]arental rights may be terminated when the parents are unable or unwilling

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 10 of 15
       to meet their parental responsibilities by failing to provide for the child’s

       immediate and long-term needs.’” Id. (quoting In re D.D., 804 N.E.2d 258, 265

       (Ind. Ct. App. 2004), trans. denied).


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

       evidence or judge witness credibility. In re. I.A., 934 N.E.2d 1127, 1132 (Ind.

       Ct. App. 2010). We consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. We must also give “due regard” to the

       trial court’s unique opportunity to judge the credibility of the witnesses. Id.

       (quoting Ind. Trial Rule 52(A)).


[21]   Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

       findings of fact that support the entry of the conclusions required by subsections

       (a) and (b).” 3 Here, the trial court did enter findings of fact and conclusions of

       law in granting DCS’s petition to terminate Mother’s parental rights. When

       reviewing findings of fact and conclusions of law entered in a case involving a

       termination of parental rights, we apply a two-tiered standard of review. First,




       3
        Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
       delinquent child or CHINS, provide as follows:

               (a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
                   allegations in a petition described in section 4 of this chapter are true, the court shall
                   terminate the parent-child relationship.

               (b) If the court does not find that the allegations in the petition are true, the court shall
                   dismiss the petition.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018                         Page 11 of 15
       we determine whether the evidence supports the findings, and second, we

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

       trial court’s judgment only if it is clearly erroneous. Id. A judgment is clearly

       erroneous if the findings do not support the trial court’s conclusions or the

       conclusions do not support the judgment. Id.


[22]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in 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.


                                (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




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 12 of 15
                        (D)     that there is a satisfactory plan for the care and
                                treatment of the child.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


[23]   Mother concedes, in her argument regarding Indiana Code Section 31-35-2-

       4(b)(2), that DCS has established, by clear and convincing evidence, that: (1)

       there is a reasonable probability that the conditions that resulted in the

       Children’s removal will not be remedied; and (2) DCS has a satisfactory plan

       for the Children’s care and treatment. Mother, thus, only challenges the trial

       court’s finding that termination of Mother’s parental rights is in the Children’s

       best interests.


[24]   In determining what is in the best interests of a child, the trial court is required

       to look at the totality of the evidence. In re D.D., 804 N.E.2d at 267. In doing

       so, the trial court must subordinate the interests of the parents to those of the

       child involved. Id. Termination of a parent-child relationship is proper where

       the child’s emotional and physical development is threatened. In re K.T.K.,

       989 N.E.2d at 1235. A trial court need not wait until a child is irreversibly

       harmed such that his or her physical, mental, and social development is

       permanently impaired before terminating the parent-child relationship. Id.

       Additionally, a child’s need for permanency is a “central consideration” in

       determining the best interests of a child. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 13 of 15
[25]   A parent’s historical inability to provide a suitable, stable home environment

       along with the parent’s current inability to do so supports a finding that

       termination is in the best interest of the child. In re A.P., 981 N.E.2d 75, 82

       (Ind. Ct. App. 2012). Testimony of the service providers and evidence that the

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

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

       In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans. denied.


[26]   DCS’s involvement with the Children was prompted largely by Mother’s

       housing and employment instability. During the pendency, Mother obtained

       housing, but was subsequently evicted following an arrest. Approximately

       three weeks before the fact-finding hearing, Mother and her husband claimed to

       have secured an apartment in which they had lived for three weeks. By the

       time of the fact-finding hearing, Mother was again incarcerated, but claimed

       that her part-time jobs were still available to her. Mother failed to take

       advantage of referred services and to avail herself of DCS’s resources.

       Additionally, Mother failed to address her substance abuse issues and tested

       positive for various controlled substances during the proceedings. As a result,

       Mother failed to make any appreciable progress regarding DCS’s case plan for

       reunification.


[27]   The record supports the finding that Mother simply failed to demonstrate that

       she can provide permanency and a stable environment for the Children. By the

       time of the termination hearing, the Children had been removed from Mother’s

       care for nearly three years, and Mother failed to make necessary adjustments to

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 14 of 15
       remedy her housing and employment instability in order to provide the

       Children with a safe and healthy environment. The record establishes that,

       since their removal from Mother’s care, the Children are thriving in a stable and

       loving home in the care of foster parents, both of whom can fully meet the

       Children’s needs and intend to adopt the Children with DCS’s full support.

       Lastly, DCS presented testimony from the DCS family case managers, Hardin

       and Fountain, and the CASA, Hirtzel, that termination of Mother’s parental

       rights was in the Children’s best interests. See In re A.S., 17 N.E.3d at 1005

       (holding that testimony of the service providers, in addition to evidence that the

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

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


[28]   Based upon the totality of the evidence, we conclude that DCS provided clear

       and convincing evidence that termination of Mother’s parental rights was in the

       Children’s best interests. We cannot conclude that the trial court’s finding is

       clearly erroneous.


                                                  Conclusion
[29]   The evidence is sufficient to support the termination of Mother’s parental rights

       to the Children. We affirm.


[30]   Affirmed.


[31]   Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-634 | October 11, 2018   Page 15 of 15
