MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                            Jul 06 2015, 6:40 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
Megan B. Quirk                                             Gregory F. Zoeller
Muncie, Indiana                                            Attorney General of Indiana
Kristin R. Willadsen
                                                           Robert J. Henke
Muncie, Indiana
                                                           James D. Boyer
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          July 6, 2015
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of C.W., Minor                               18A02-1501-JT-163
Child, and his parents,                                   Appeal from the Delaware Circuit
                                                          Court
B.S. and Ch.W.,
                                                          The Honorable Kimberly S.
Appellants-Respondents,                                   Dowling, Judge
                                                          The Honorable Brian M. Pierce,
        v.                                                Magistrate
                                                          Case No. 18C02-1404-JT-21
Indiana Department of Child
Services,
Appellee-Petitioner,




Vaidik, Chief Judge.


Court of Appeals of Indiana | Memorandum Decision 18A02-1501-JT-163 | July 6, 2015            Page 1 of 13
                                           Case Summary
[1]   B.S. (“Mother”) and Ch.W. (“Father”) appeal the termination of their parental

      rights to their son, C.W. They argue that there is insufficient evidence to

      support the trial court’s termination order. Mother also argues that termination

      of her parental rights is not in C.W.’s best interests. But neither parent has

      proven that they are capable of caring for their child: Mother failed to complete

      court-ordered services and did not remedy authorities’ concerns about her

      substance abuse, employment, education, and housing, and Father, who has

      ongoing substance-abuse issues, is serving an eight-year sentence for a felony

      drug conviction. C.W., meanwhile, is thriving in the care of his maternal

      grandmother, who hopes to adopt him. We conclude that there is sufficient

      evidence to support the termination order and that termination is in C.W.’s best

      interests. We affirm.



                             Facts and Procedural History
[2]   Mother and Father’s child, C.W., was born in March 2012. In June 2013 the

      Indiana Department of Child Services (DCS) learned that C.W. was living in a

      home where methamphetamine was being manufactured. DCS removed C.W.

      from his parents’ care and filed a petition alleging that he was a child in need of

      services (CHINS). C.W. was later placed with his maternal grandmother.


[3]   DCS’s CHINS petition alleged that:




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                   •   C.W., Mother, and Father were present in a home where
                       methamphetamine was produced and used
                   •   Father used illegal drugs, including methamphetamine
                   •   Mother used illegal drugs, including marijuana
                   •   C.W., at fifteen months old, had not received routine medical
                       care and was not current on his vaccinations
                   •   Marijuana was found near C.W.’s toys in the home

      See State’s Ex. 2. A short time later, Father was arrested and charged with

      Class B felony dealing in methamphetamine, Class C felony neglect of a

      dependent, Class D felony possession of methamphetamine, and Class D felony

      possession of chemical reagents or precursors with intent to manufacture.


[4]   Mother and Father admitted that C.W. was a CHINS. In October 2013 the

      trial court ordered Mother and Father to do a variety of things to facilitate

      reunification with C.W., including: exercise routine parenting time with C.W.,

      refrain from using illegal drugs, participate in random drug testing, maintain

      appropriate housing, and complete parenting and substance-abuse assessments.

      Mother was also ordered to complete her GED. See State’s Ex. 10.


[5]   Father, who was on home detention awaiting trial, exercised parenting time

      with C.W. for two months until he violated the terms of his home detention by

      manufacturing methamphetamine. Father later pled guilty to Class B felony

      dealing in methamphetamine and began serving an eight-year sentence.

      Mother, meanwhile, did not participate meaningfully in any court-ordered

      services. In April 2014 DCS filed a petition to terminate Mother’s and Father’s



      Court of Appeals of Indiana | Memorandum Decision 18A02-1501-JT-163 | July 6, 2015   Page 3 of 13
      parental rights. The trial court held a hearing on the termination petition in

      October 2014.


[6]   At the hearing, caseworkers testified that Mother made no real progress toward

      reunification. Mother’s therapist, Aaron Mocherman, testified that Mother

      struggled with substance abuse and was “not in recovery.” Tr. p. 24.

      Mocherman explained that “there’s stated sobriety . . . but there’s not the

      rearrangement in the rest of [her] life. Changing social networks, dealing with

      conflicts in healthy ways that facilitate recovery. Um, lack of twelve-step

      meeting attendance. Those things.” Id. at 25. Jennifer Lombard, Mother’s

      home-based service provider, testified that she worked with Mother in three

      areas: employment, education, and housing. Mother made no progress in these

      areas—she found a job as a hostess at Bob Evans, but her employment lasted

      only one week. Id. at 33-34. And Mother, who dropped out of high school,

      had not made any progress toward completing her GED, nor had she secured

      suitable housing. Id. at 34. Family Case Manager Amy Swingley (FCM

      Swingley) echoed Lombard’s and Mocherman’s testimony. She also testified

      that of eleven random drug screens, Mother refused four screens and tested

      positive for marijuana and cocaine twice. Id. at 43.


[7]   FCM Swingley also testified about Father’s lack of progress. Before Father’s

      home detention was revoked, he exercised parenting time with C.W. but failed

      to complete a required substance-abuse assessment and tested positive for

      methamphetamine, amphetamine, cocaine, and marijuana. Id. at 39. FCM



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      Swingley said that she did not believe that the conditions that led to C.W.’s

      removal would be remedied due to:

              [Father]’s current incarceration. He had been released from jail and
              was given the opportunity to comply [with] services and he failed to
              stay out of jail. He did not follow through with his substance-abuse
              assessment while he was released and at this time [M]other has not
              made any progress in services and doesn’t maintain regular visitation
              with her child.
      Id. at 44. She further opined that Mother and Father were “currently incapable

      of caring for [C.W.] and maintaining his safety.” Id. at 44-45. C.W., who was

      still in his maternal grandmother’s care, was “thriving and doing very well. He

      has an excellent daycare where they report he is progressing in his speech. Um,

      he . . . [is] on time in his developmental milestones.” Id. at 45. Maternal

      grandmother hoped to adopt C.W. Id. C.W.’s court-appointed special

      advocate testified that C.W. deserved permanency, “and the best way for that to

      happen is for him to be adopted by his grandmother.” Id. at 81.


[8]   Mother and Father both testified. They acknowledged that they had not

      complied with the trial court’s orders, but nonetheless opposed termination of

      their parental rights.


[9]   In December 2014 the trial court entered an order with findings terminating

      Mother’s and Father’s parental rights. Appellant’s App. p. 63-66. In its order,

      the court emphasized both parents’ lack of progress:

              [In] . . . October [] 2013, Father . . . was granted pretrial electronic
              home detention in his pending criminal case, thereby opening up an
              opportunity for Father to start regularly visiting with his child. By all

      Court of Appeals of Indiana | Memorandum Decision 18A02-1501-JT-163 | July 6, 2015   Page 5 of 13
               accounts, the supervised visitation between the child and Father went
               well as Father showed the capacity to be a loving and caring parent.
               However . . . a petition to revoke [Father’s] pretrial home detention
               was filed. [Father] violated the terms of his pretrial release and was
               again incarcerated pending the outcome of his outstanding criminal
               charges. By violating the terms of his pretrial release, [Father] once
               again succumbed to the pull of his substance abuse and sacrificed his
               relationship with his son in the process.
                                        *        *        *       *        *
               [Father’s] pattern of illegal drug use, criminal activity, and current
               incarceration indicates that he is incapable at this time of providing the
               safe, stable, and permanent parenting that the child needs and
               deserves.
               [Mother] demonstrated no progress in her reunification services,
               despite being given every opportunity to do so. She has not, in any
               meaningful manner, addressed her substance abuse, her substandard
               parenting skills, her educational deficiencies, her lack of employment,
               and her lack of housing.
       Id. at 63-64 (formatting altered).


[10]   Mother and Father now appeal.



                                  Discussion and Decision
[11]   Mother and Father, appealing separately, both argue that there is insufficient

       evidence to support the trial court’s order terminating their parental rights.

       Mother also argues that termination is not in C.W.’s best interests.


[1]    “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., 989 N.E.2d 1225, 1230 (Ind. 2013) (citations omitted). The parent-

       child relationship is one of our culture’s most valued relationships. Id. (citation

       Court of Appeals of Indiana | Memorandum Decision 18A02-1501-JT-163 | July 6, 2015   Page 6 of 13
      omitted). “And a parent’s interest in the upbringing of their child is ‘perhaps

      the oldest of the fundamental liberty interests recognized by the courts.’” Id.

      (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). But parental rights are not

      absolute—“children have an interest in terminating parental rights that prevent

      adoption and inhibit establishing secure, stable, long-term, continuous

      relationships.” Id. (citations omitted). Thus, a parent’s interests must be

      subordinated to a child’s interests when considering a termination petition. Id.

      (citation omitted). A parent’s rights may be terminated if the parent is unable

      or unwilling to meet their parental responsibilities by failing to provide for the

      child’s immediate and long-term needs. Id. (citations omitted).


[2]   When reviewing the termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Id. at 1229 (citation omitted).

      Instead, we consider only the evidence and reasonable inferences that support

      the judgment. Id. (citation omitted). “Where a trial court has entered findings

      of fact and conclusions of law, we will not set aside the trial court’s findings or

      judgment unless clearly erroneous.” Id. (citing Ind. Trial Rule 52(A)). In

      determining whether the court’s decision to terminate the parent-child

      relationship is clearly erroneous, “we review the trial court’s judgment to

      determine whether the evidence clearly and convincingly supports the findings

      and the findings clearly and convincingly support the judgment.” Id. (citation

      omitted).


[3]   A petition to terminate parental rights must allege:



      Court of Appeals of Indiana | Memorandum Decision 18A02-1501-JT-163 | July 6, 2015   Page 7 of 13
        (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.

                 (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).


Court of Appeals of Indiana | Memorandum Decision 18A02-1501-JT-163 | July 6, 2015   Page 8 of 13
[4]   “DCS must prove the alleged circumstances by clear and convincing evidence.”

      K.T.K., 989 N.E.2d at 1231 (citation omitted). On appeal, both parents

      challenge the sufficiency of the evidence supporting the trial court’s judgment as

      to subsection (B) of the termination statute. Mother also argues that

      termination is not in C.W.’s best interests.


                                    1. Conditions Remedied
[5]   Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore,

      DCS was required to establish, by clear and convincing evidence, only one of

      the three requirements of subsection (B). We therefore need only discuss

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

      C.W.’s removal or the reasons for his placement outside his parents’ home will

      not be remedied.


[6]   In determining whether the conditions that resulted in a child’s removal or

      placement outside the home will not be remedied, we engage in a two-step

      analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (citation omitted). We first

      identify the conditions that led to removal or placement outside the home and

      then determine whether there is a reasonable probability that those conditions

      will not be remedied. Id. (quotation omitted). The second step requires trial

      courts to judge a parent’s fitness at the time of the termination proceeding,

      taking into consideration evidence of changed conditions, and balancing any

      recent improvements against “habitual patterns of conduct to determine




      Court of Appeals of Indiana | Memorandum Decision 18A02-1501-JT-163 | July 6, 2015   Page 9 of 13
      whether there is a substantial probability of future neglect or deprivation.” Id.

      (citations omitted).


[7]   Here, the trial court concluded that there was a reasonable probability that the

      conditions resulting in C.W.’s removal from Mother’s and Father’s care or

      placement outside their home would not be remedied. In reaching this

      conclusion, the court explained that neither parent had made any progress in

      improving their ability to parent C.W.:

                [Father’s] pattern of illegal drug use, criminal activity, and current
                incarceration indicates that he is incapable at this time of providing the
                safe, stable, and permanent parenting that the child needs and
                deserves.
                [Mother] demonstrated no progress in her reunification services,
                despite being given every opportunity to do so. She has not, in any
                meaningful manner, addressed her substance abuse, her substandard
                parenting skills, her educational deficiencies, her lack of employment,
                and her lack of housing.
      Appellant’s App. p. 64.


[8]   Despite this, Mother argues that “there is no evidence in the record that . . .

      [Mother] ever abused her child and little evidence that she neglected her child in

      any way.” Appellant Mother’s Br. p. 15. Mother’s argument is not

      persuasive—she fails to acknowledge her lack of participation in court-ordered

      services as well as caseworkers’ legitimate and ongoing concerns about her

      substance abuse, employment, education, and housing issues. There is

      sufficient evidence to support the trial court’s decision to terminate Mother’s

      rights.


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[9]    Likewise, there is sufficient evidence to support the court’s decision to

       terminate Father’s rights. During these proceedings, Father pled guilty to Class

       B felony dealing in methamphetamine and began serving an eight-year

       sentence. At the termination hearing, FCM Swingley testified that before

       Father’s home detention was revoked, he failed to complete a required

       substance-abuse assessment and tested positive for methamphetamine,

       amphetamine, cocaine, and marijuana, and at the time of the termination

       hearing, Father was not scheduled to be released for nearly two years. On

       appeal, Father argues that C.W. does not have extraordinary needs and Father

       has family support. See Appellant Father’s Br. p. 17. He also argues that he

       took responsibility for his substance abuse but was unable to take advantage of

       inpatient substance-abuse programs due to his incarceration. Id. But as the trial

       court emphasized—and Father himself admits—Father has a well-documented

       history of substance abuse that he has not remedied, and he has been

       unavailable to parent C.W. for most of his young son’s life due to his criminal

       conduct. In light of this, we cannot say the trial court erred in terminating

       Father’s parental rights. See Castro v. State Office of Family & Children, 842

       N.E.2d 367, 375 (Ind. Ct. App. 2006) (holding that “[i]ndividuals who pursue

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

       and meaningful relationships with their children.”), trans. denied.


                                             2. Best Interests
[10]   Mother argues that termination is not in C.W.’s best interests. In determining

       what is in a child’s best interests, the trial court must look to the totality of the

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       evidence. See A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158 (Ind. Ct.

       App. 2013), trans. denied. “In so doing, the trial 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.


[11]   As we have already explained, Mother failed to participate in court-ordered

       services and, as a result, failed to alleviate legitimate and ongoing concerns

       about her substance abuse, employment, education, and housing. She also

       failed to exercise regular parenting time with C.W. At the termination hearing,

       FCM Swingley told the trial court that Mother was “currently incapable of

       caring for [C.W.] and maintaining his safety.” Tr. p. 44-45. C.W., meanwhile,

       was thriving in his maternal grandmother’s care, and she hoped to adopt him.

       C.W.’s court-appointed special advocate testified that C.W. deserved

       permanency, “and the best way for that to happen is for him to be adopted by

       his grandmother.” Id. at 81.


[12]   We conclude that the evidence supports the trial court’s determination that

       termination of Mother’s parental rights is in C.W.’s best interests. See In re A.I.,

       825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (testimony of caseworkers, together

       with evidence that the conditions resulting in placement outside the home will

       not be remedied, was sufficient to prove by clear and convincing evidence that

       termination was in child’s best interests), trans. denied; see also In re S.P.H., 806

       N.E.2d 874, 883 (Ind. Ct. App. 2004) (children’s needs are too substantial to



       Court of Appeals of Indiana | Memorandum Decision 18A02-1501-JT-163 | July 6, 2015   Page 12 of 13
       force them to wait while determining if their parents will be able to parent

       them).


[13]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




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