MEMORANDUM DECISION
                                                                     Mar 23 2015, 6:23 am

Pursuant to Ind. Appellate Rule 65(D), this
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.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Nicholas J. Hursh                                         Gregory F. Zoeller
Shambaugh, Kast, Beck & Williams, LLP                     Attorney General of Indiana
Fort Wayne, Indiana
                                                          Robert J. Henke
                                                          Abigail R. Miller
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 23, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of:                                                      02A03-1408-JT-275
                                                         Appeal from the Allen Superior
B.H. (Minor Child),                                      Court
and
                                                         The Honorable Charles F. Pratt,
E.C. (Mother),                                           Judge
Appellant-Respondent,                                    The Honorable Lori K. Morgan,
                                                         Magistrate
        v.
                                                         Case No. 02D08-1309-JT-114
The Indiana Department of
Child Services,
Appellee-Petitioner




Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015        Page 1 of 15
                                                 Case Summary
[1]   E.C. (“Mother”) appeals the trial court’s judgment terminating her parental

      rights to B.H. (“Child”).1 She argues that the trial court clearly erred in

      determining that the Indiana Department of Child Services (“DCS”) presented

      clear and convincing evidence that there is a reasonable probability that the

      conditions that resulted in Child’s removal or placement outside Mother’s

      home will not be remedied and that termination of Mother’s parental rights is in

      Child’s best interests. Concluding that the trial court did not clearly err, we

      affirm.


                                     Facts and Procedural History
[2]   The facts most favorable to the trial court’s judgment follow.2 On August 28,

      2011, Mother gave birth to Child. Mother took methadone while she was

      pregnant, and Child was born with methadone in her system. Five days were

      required to wean Child off methadone.


[3]   On May 17, 2012, in case number 02D05-1205-FB-87 (“Criminal Case”),

      Mother was arrested for dealing in a controlled substance. On May 31, 2012,

      DCS filed its verified petition alleging that Child was a child in need of services

      (“CHINS”) after learning that Mother tried to sell illegal drugs in Child’s




      1
          B.H.’s father consented to her adoption. Appellant’s App. at 18.
      2
       Mother did not present the facts in accordance with our standard of review as required by Indiana
      Appellate Rule 46(A)(6)(b).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015           Page 2 of 15
      presence. Mother’s Criminal Case and the CHINS case then moved along in

      tandem. On June 6, 2012, DCS removed Child, then ten months old, from

      Mother’s care on an emergency basis and placed Child with her paternal great

      aunt and uncle. On June 18, 2012, in the Criminal Case, Mother pled guilty to

      two counts of class C felony dealing in a controlled substance. On June 26,

      2012, the Criminal Case court took her guilty plea under advisement and

      assigned Mother to Drug Court. Drug Court placed Mother at Hope House in

      Fort Wayne, a residential facility providing programs for women with chemical

      dependency.


[4]   On July 3, 2012, the trial court held a hearing on the CHINS petition. Mother

      admitted to the following allegations in the petition: she used illegal drugs; she

      once used illegal drugs in Child’s presence; she previously had drug

      paraphernalia in her home; in October 2011, DCS substantiated an allegation

      that she neglected Child by permitting his exposure to illegal drugs; she pled

      guilty to two counts of class C felony dealing in a controlled substance in the

      Criminal Case; and she was unable to provide independent care, housing, and

      financial support for Child. The trial court adjudicated Child a CHINS. In its

      dispositional order and parental participation plan, the trial court ordered

      Mother to obtain employment, earn a GED, participate in Narcotics

      Anonymous (“NA”) and/or Alcoholics Anonymous (“AA”), obtain a

      drug/alcohol assessment and follow all recommendations, obtain a parenting

      assessment and follow all recommendations, submit to random drug screens,

      attend visits with Child, and refrain from all criminal activity. Mother’s Drug


      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015   Page 3 of 15
      Court program contained many of these same requirements, including

      substance abuse treatment and participation in NA or AA.


[5]   In July and September 2013, DCS gave Mother two referrals for a drug/alcohol

      assessment, but she did not follow through.3 DCS decided not to make any

      additional referrals for such an assessment after it realized that Mother was

      receiving treatment for substance abuse through Drug Court and DCS did not

      want to duplicate services.4


[6]   In September 2013, Mother completed a parenting assessment, which

      recommended that she participate in a parenting program, individual

      counseling, a substance abuse program, and comply with Drug Court rules and

      the rules of her current home. Mother did complete a parenting program. Tr.

      at 121. On September 4, 2012, Mother violated Drug Court rules when she

      tested positive for unprescribed morphine and codeine. She was sentenced to

      two weeks in jail. She then returned to live at Hope House. However, on

      October 11, 2012, Mother again violated Drug Court rules by using heroin,

      opiates, and fentanyl and was sentenced to three weeks in jail.




      3
       DCS and the trial court both cite Mother’s failure to complete the first two referrals for drug/alcohol
      assessment without proper acknowledgement that Mother was also participating in Drug Court.
      4
        This case highlights the need for coordination among the various entities that were assigned by the trial
      court and the Drug Court and referred by DCS to assist Mother. One wonders at the logistical challenges,
      such as transportation and time management, facing a person who must comply with all the overlapping
      requirements.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015               Page 4 of 15
[7]   On October 31, 2012, Drug Court referred Mother to Tara Treatment Center in

      Franklin where she completed a thirty-day inpatient treatment program. After

      that, Mother moved to the Rose Home in Fort Wayne, a residential facility

      with treatment for women with drug addiction. Tara recommended that

      Mother continue treatment at the Bowen Center. Mother completed a

      drug/alcohol assessment at Bowen. Bowen recommended that Mother

      undertake a six-month intensive outpatient program (“IOP”), which included

      three components: moral recognition therapy (“MRT”), relapse prevention, and

      advanced relapse prevention. The first six weeks consisted of three meetings a

      week, which thereafter dropped to two meetings a week for five weeks and one

      meeting a week for twelve weeks. Mother attended group therapy regularly

      through March 2013 (about five months), but she attended only two MRT

      sessions. Therefore, she did not complete the IOP.


[8]   In January 2013, DCS provided Mother with a referral for individual

      counseling as recommended by the parenting assessment. Id. at 122. Mother

      was supposed to meet weekly with a counselor. Between January 2013 and

      August 7, 2013, Mother attended fourteen counseling sessions, cancelled

      sixteen sessions, and had three no-shows. In August 2013, as discussed below,

      Mother’s participation in Drug Court was revoked. After Mother’s

      participation in the Drug Court was revoked, she did not attend individual

      counseling sessions until March 10, 2014, the last counseling session she

      attended. Mother’s counselor believed that Mother had not achieved her goals

      and needed more counseling.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015   Page 5 of 15
[9]    On April 10, 2013, DCS filed a permanency report with the trial court

       recommending that Child be reunited with Mother. On April 22, 2013, the trial

       court issued a permanency plan order, finding that it was in Child’s best

       interests to be reunified with Mother and ordering that the permanency plan be

       accomplished within twelve months. The trial court also ordered that Child’s

       placement with her paternal great aunt and uncle be continued.


[10]   Both the CHINS dispositional order and Drug Court required Mother to attend

       NA or AA meetings. Mother attended weekly NA meetings while she was in

       Drug Court. Although Mother did not provide physical verification to DCS

       that she was attending weekly NA meetings, her DCS case manager was in

       constant contact with Mother’s Drug Court case manager and “didn’t require it

       really because I knew she was going.” Id. at 113.5


[11]   On August 12, 2013, Mother violated Drug Court rules for the third time by

       using opiates and falsifying her drug screens. The Criminal Case court revoked

       Mother’s placement in Drug Court. On September 17, 2013, the Criminal Case

       court entered judgment of conviction for two counts of class C felony dealing in

       a controlled substance pursuant to her original plea agreement and sentenced

       her to four years with three and a half years suspended, and two years of




       5
         DCS claims that Mother never provided proof of attendance at AA/NA meetings to DCS, implying that
       Mother did not attend such meetings. Appellee’s Br. at 6. We are disappointed that DCS omits salient
       information as to why Mother did not supply that proof.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015       Page 6 of 15
       supervised probation. Mother also pled guilty to misdemeanor false informing

       and was sentenced to ten days in jail.


[12]   On September 3, 2013, DCS filed a permanency report recommending

       termination of Mother’s parental rights. On October 2, 2013, DCS filed a

       petition for involuntary termination of Mother’s parental rights.


[13]   On October 7, 2013, Mother was admitted to Tara for a second time,

       apparently as part of her probation. She completed a twenty-nine-day inpatient

       treatment program on November 5, 2013. Mother then moved in with Child’s

       maternal grandmother. Tara recommended that Mother follow up with

       treatment through Bowen. Again, Bowen recommended that Mother complete

       an IOP. From November 2013 through April 2014, Mother attended only five

       therapy sessions. Mother never completed the IOP. If she returned to Bowen

       for treatment, she would likely be required to start the IOP over again.


[14]   From September 24, 2013, through February 25, 2014, all Mother’s drug

       screens were negative. However, after January 2014, Mother missed five drug

       screens. On March 14, 2014, Mother tested positive for unprescribed Cyboxin,6

       and the Criminal Case court placed her on home detention. Mother will

       remain on home detention until September 1, 2015. In early April 2014, just

       before the termination hearing, Mother tested positive for methadone. Mother




       6
         Although the transcript refers to “Cyboxin,” the drug was likely Suboxone, a prescription medication used
       to treat opiate dependency.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015            Page 7 of 15
       told her DCS case manager that she had a prescription for it, but she did not

       provide proof of a prescription.


[15]   Mother’s visits with Child were supervised and scheduled twice a week for

       about four hours per visit. Mother was frequently late to visitation. In August

       2013, DCS considered in-home visitation, but then Mother was arrested and

       incarcerated for her Drug Court violations. From February 22, 2014, through

       April 10, 2014, Mother did not visit with Child.


[16]   On April 10 and 11, 2014, the trial court held a hearing on DCS’s petition to

       terminate Mother’s parental rights. On July 9, 2014, the trial court issued an

       order terminating the parent-child relationship between Mother and Child.

       Mother appeals.


                                      Discussion and Decision

                                          Standard of Review
[17]   This is an appeal of a termination of parental rights.

               The Fourteenth Amendment to the United States Constitution protects
               the traditional right of parents to establish a home and raise their
               children. A parent’s interest in the care, custody, and control of his or
               her children is perhaps the oldest of the fundamental liberty interests.
               Indeed the parent-child relationship is one of the most valued
               relationships in our culture. We recognize, however, that parental
               interests are not absolute and must be subordinated to the child’s
               interests in determining the proper disposition of a petition to
               terminate parental rights. Thus, parental rights may be terminated
               when the parents are unable or unwilling to meet their parental
               responsibilities.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015   Page 8 of 15
                 When reviewing the termination of parental rights, we do not reweigh
                 the evidence or judge witness credibility. We consider only the
                 evidence and reasonable inferences that are most favorable to the
                 judgment. …. 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, we determine whether the
                 evidence supports the findings, and second we determine whether the
                 findings support the judgment. We will set aside the [trial] court’s
                 judgment only if it is clearly erroneous. A judgment is clearly
                 erroneous if the findings do not support the [trial] court’s conclusions
                 or the conclusions do not support the judgment.

       In re G.Y., 904 N.E.2d 1257, 1259-60 (Ind. 2009) (citations, quotation marks,

       and brackets omitted).


[18]   A petition to terminate a parent-child relationship involving a CHINS must

       allege:

                 (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:
       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015   Page 9 of 15
                        (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).


[19]   The State must prove by “clear and convincing evidence” each and every

       element set forth in Section 31-35-2-4(b)(2). G.Y., 904 N.E.2d at 1261; Ind.

       Code § 31-37-14-2. “‘Clear and convincing evidence need not reveal that the

       continued custody of the parents is wholly inadequate for the child’s very

       survival.’” Id. (quoting Bester v. Lake Cnty. Office of Family & Children, 839

       N.E.2d 143, 148 (Ind. 2005)). “‘Rather, it is sufficient to show by clear and

       convincing evidence that the child’s emotional and physical development are

       threatened by the respondent parent’s custody.’” Id. (quoting Bester, 839

       N.E.2d at 148).




       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015   Page 10 of 15
               Section 1 – There is a reasonable probability that the
              conditions that resulted in Child’s removal will not be
                                     remedied.
[20]   Mother challenges the trial court’s determination that DCS presented clear and

       convincing evidence that there is a reasonable probability that the conditions

       resulting in Child’s removal would not be remedied. When determining

       whether a reasonable probability exists that the conditions justifying a child’s

       removal or placement outside the home will not be remedied, the trial court

       must assess a parent’s fitness at the time of the termination hearing, taking into

       consideration evidence of changed conditions. A.J. v. Marion Cnty. Office of

       Family & Children, 881 N.E.2d 706, 714 (Ind. Ct. App. 2008), trans. denied. “The

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

       whether there is a substantial probability of future neglect or deprivation of the

       children.” Id. “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.” McBride v. Monroe

       Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).

       Also, the trial court may consider the services offered to the parent and the

       parent’s response to those services. Id.


[21]   We note that Mother does not challenge the trial court’s findings of fact.

       Because Mother does not challenge the trial court’s findings, we accept them as

       true. See In re Involuntary Termination of Parent-Child Relationship of B.R., 875

       N.E.2d 369, 373 (Ind. Ct. App. 2007) (concluding that parent’s failure to


       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015   Page 11 of 15
       specifically challenge the trial court’s findings resulted in waiver of her

       argument that findings were clearly erroneous), trans. denied; see also Madlem v.

       Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge

       the findings of the trial court, they must be accepted as correct.”); McMaster v.

       McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (“Father does not

       challenge these findings and we accept them as true.”).


[22]   The trial court found, in relevant part, the following: Mother did not complete

       the IOP recommended from the alcohol/drug assessment she received at

       Bowen; her assignment to Drug Court was revoked after she broke the rules

       three times by using illegal drugs; she tested positive for methadone on April 4,

       2014, but did not produce a valid prescription; she has been unable to maintain

       sobriety; she missed visitation with Child when she was incarcerated or when

       receiving inpatient treatment and was often late to her visitations with Child;

       she failed to visit with Child from February 22, 2014, to April 10, 2014; due to

       the lapses in visitation there is some question as to how well bonded Child is

       with Mother; Mother has not had stable housing and has lived in approximately

       eight different locations–including three stays in jail–since the initiation of the

       CHINS case; she has not maintained stable employment; and she

       acknowledged at the termination hearing that she was unable to provide for

       Child. Appellant’s App. at 22-24. As discussed above, we accept these findings

       as true. We conclude that these findings support the trial court’s conclusion

       that DCS presented clear and convincing evidence that there is a reasonable

       probability that the conditions resulting in Child’s removal will not be


       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015   Page 12 of 15
       remedied. Mother’s argument that other evidence shows that there is a

       reasonable probability that the conditions resulting in Child’s removal will be

       remedied is merely an invitation to reweigh the evidence, which we must

       decline.7


            Section 2 – Termination of Mother’s parental rights is in
                             Child’s best interests.
[23]   Mother also contends that the trial court clearly erred in determining that DCS

       presented clear and convincing evidence that termination of her parental rights

       is in Child’s best interests.

               [I]n determining what is in the best interests of a child, the trial court is
               required to look beyond the factors identified by the Department of
               Child Services and to consider the totality of the evidence. In so
               doing, the trial court must subordinate the interests of the parent to
               those of the child. The court need not wait until a child is irreversibly
               harmed before terminating the parent-child relationship. Moreover,
               we have previously held that the recommendations of the case
               manager and court-appointed 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.

       In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (citations omitted); see also

       In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999) (“[C]hildren should not be




       7
         Given our resolution of this issue, we need not address Mother’s argument that DCS failed to prove that
       the continuation of the parent-child relationship poses a threat to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015          Page 13 of 15
       compelled to suffer emotional injury, psychological adjustments, and instability

       to preserve parental rights.”), trans. denied (2000), cert. denied (2002).


[24]   Here, Mother’s DCS case manager and Child’s guardian ad litem testified that

       it is in Child’s best interests to terminate Mother’s parental rights. Child has

       been in the care of her paternal great uncle and aunt since June 2012. They are

       willing and able to adopt Child. And, as we have already concluded, there is a

       reasonable probability that the conditions resulting in Child’s removal will not

       be remedied. This is sufficient to establish that termination of parental rights is

       in Child’s best interests.


[25]   Nevertheless, Mother argues that her case is akin to In re G.Y., 904 N.E.2d

       1257, in which our supreme court concluded that clear and convincing evidence

       did not support the trial court’s determination that termination of mother’s

       parental rights was in the child’s best interests. G.Y. is clearly distinguishable.

       There, a year before mother gave birth, she delivered cocaine to a police

       informant. Thirty-two months later, when G.Y. was twenty months old,

       mother was arrested and incarcerated for this offense. However, during G.Y.’s

       first twenty months, there were no allegations that mother engaged in any

       criminal behavior or was an unfit parent. Because mother was unable to place

       G.Y. with relatives or friends when she was arrested, DCS filed a petition

       alleging that G.Y. was a CHINS. Mother pled guilty to dealing in cocaine and

       was sentenced to twelve years, with four years suspended to probation. G.Y.

       was adjudicated a CHINS, and subsequently mother’s parental rights were

       terminated. Our supreme court reversed the trial court’s termination of

       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015   Page 14 of 15
       mother’s parental rights, concluding that neither the likelihood that she would

       reoffend nor the amount of time it would take her to comply with the

       participation order constituted a sufficiently strong reason to warrant

       termination of her parental rights. Id. at 1263-64.


[26]   The facts of this case are in stark contrast to G.Y. Mother engaged in criminal

       behavior, was unable to comply with Drug Court rules, and has been unable to

       remain sober since Child’s birth. We conclude that the trial court did not

       clearly err in determining that DCS presented clear and convincing evidence

       that termination of Mother’s parental rights was in Child’s best interests.

       Therefore, we affirm the judgment terminating her parental rights.


[27]   Affirmed.


       Friedlander, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-JT-275 | March 23, 2015   Page 15 of 15
