MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                        Dec 29 2016, 9:22 am

court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA
In re the Termination of the                             December 29, 2016
Parent-Child Relationship of                             Court of Appeals Case No.
N.B. (Minor Child), and                                  49A02-1605-JT-1105
                                                         Appeal from the Marion Superior
                                                         Court
A.H. (Mother),
                                                         The Honorable Larry E. Bradley,
Appellant-Respondent,                                    Magistrate

        v.                                               The Honorable Marilyn A.
                                                         Moores, Judge
                                                         Trial Court Cause No.
Indiana Department of
                                                         49D09-1507-JT-492
Child Services,
Appellee-Petitioner



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 1 of 15
[1]   A.H. (“Mother”) appeals the termination of her parental rights to N.B.

      (“Child”), challenging the sufficiency of the evidence supporting termination.

      We affirm.


                                   Facts and Procedural Posture

[2]   Child was born to Mother, then eighteen years old, in Marion County on

      January 9, 2014.1 Child was found to have been born with marijuana,

      benzodiazepines, and opiates in her body, and Mother tested positive for

      marijuana and benzodiazepines at the time of delivery. At the same time,

      Mother lacked stable housing and income and was being prosecuted in an

      ongoing criminal matter.


[3]   For these reasons, the Marion County office of the Indiana Department of

      Child Services (“DCS”) petitioned to have Child declared a child in need of

      services (“CHINS”) on January 17, 2014. Child had already been removed

      from Mother’s care and was then in the hospital. The same day, the Marion

      Superior Court held a detention hearing and ordered Child to be placed in the

      care of relatives or a foster family on Child’s release from the hospital. The

      court further authorized Mother to have supervised parenting time with Child.


[4]   The court declared Child a CHINS on January 31, 2014, based on Mother’s

      admission that she abused drugs, needed drug abuse treatment, and lacked




      1
       The parental rights in Child of R.B., Child’s alleged father, have also been terminated, but he does not
      participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016          Page 2 of 15
      stable housing. After a dispositional hearing on February 28, 2014, the court

      ordered Mother to complete a drug abuse assessment and treatment program,

      submit to random drug screens, and participate in home-based case

      management. Mother was warned at that time that failure to participate in this

      plan could lead to termination of her parental rights. At that time, Child was in

      the care of a relative, and that placement was continued. The long-term

      (“permanency”) plan for Child and Mother remained reunification.

[5]   About a year and a half later, after a hearing on July 17, 2015, the court

      changed Child’s permanency plan from reunification to adoption. Child had

      already been placed in foster care. Mother did not appear at the hearing and her

      whereabouts were unknown. Mother had not been in contact with her family

      case manager from DCS, had so far failed to participate in the services required

      by the court’s earlier dispositional order, and had not visited Child. For these

      reasons, the court concluded that adoption was now in Child’s best interests.

      DCS petitioned to terminate Mother’s parental rights on July 31, 2015.


[6]   A few months after the termination petition was filed, in November 2015, the

      family’s DCS case manager found Mother in state prison. Mother requested

      and was appointed counsel from the Marion County public defender in January

      2016. From January 2016 to March 2016, however, the public defender was

      unable to speak with Mother in prison. Mother refused to accept his calls, did

      not return them, and did not respond to his letters. Proceedings on the

      termination petition were repeatedly continued for Mother’s failure to appear.

      On March 16, 2016, the public defender gave Mother notice by letter that he

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 3 of 15
      intended to withdraw from her case, that she would then be unrepresented, and

      that she could be subject to default judgment if she continued to fail to appear.

      Appellant’s App. p. 58.


[7]   On April 20, 2016, the court proceeded to trial on the petition. Mother again

      failed to appear, and her public defender was permitted to withdraw. The

      family’s DCS case manager and Child’s guardian ad litem (“GAL”) both

      thought that termination of Mother’s rights and Child’s adoption by a relative,

      Child’s relative caregiver at the time, would be in Child’s best interests. The

      case manager testified that, since Child was first removed from Mother’s case,

      Mother had not participated in court-ordered services, visited Child, nor taken

      steps to remedy her drug abuse. Child’s current relative caregiver, by contrast,

      was able to “provide [a] safe[,] stable home” for Child with “running water”

      and “stable employment.” Tr. p. 9. Child’s GAL submitted an affidavit

      agreeing with the case manager’s recommendations because Mother “is unable

      to provide permanency for [Child].” Ex. Vol., GAL Ex. I. The court ordered

      Mother’s parental rights in Child terminated on April 21, 2016.


[8]   This appeal followed. Mother asserts that DCS failed to prove by clear and

      convincing evidence that conditions leading to Child’s removal from Mother’s

      care were unlikely to be remedied, that continuing the parent-child relationship

      was a threat to Child, that termination of that relationship was in Child’s best

      interests, and that adoption was a satisfactory plan for Child.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 4 of 15
                                          Standard of Review

[9]    DCS bore the burden below to prove its allegations by clear and convincing

       evidence. Santosky v. Kramer, 455 U.S. 745 (1982); Ind. Code § 31-37-14-2

       (2016). On appellate review of an order terminating a parent’s rights to her

       child, we do not reweigh the evidence or determine the credibility of witnesses.

       In re N.G., 51 N.E.3d 1167, 1170 (Ind. 2016). We consider only the evidence

       that supports the judgment and the reasonable inferences to be drawn from it.

       Id. We proceed in two steps, first asking whether the evidence clearly and

       convincingly supports the findings made below, and second, whether the

       findings clearly and convincingly support the judgment. Id. We will set aside

       neither unless clearly erroneous. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). It is

       “not enough that the evidence might support some other conclusion[; rather,] it

       must positively require the conclusion contended for by the appellant before

       there is a basis for reversal.” Best v. Best, 941 N.E.2d 499, 504 (Ind. 2011)

       (internal quotation and citation omitted).


[10]   Requiring proof by clear and convincing evidence does not give this court any

       broader license to reweigh the evidence than we would have if proof were by a

       simple preponderance. In re E.M., 4 N.E.3d at 642. The question is not whether

       we find the evidence to be clear and convincing, In re B.H., 770 N.E.2d 283, 288

       (Ind. 2002) (internal citation and quotation omitted), but whether there is

       probative evidence from which a reasonable fact-finder could have found proof

       by clear and convincing evidence. In re N.G., 51 N.E.3d at 1170.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 5 of 15
                                      Discussion and Decision

[11]   The right of a parent to establish a home and raise her child is protected by the

       due process clause of the Fourteenth Amendment to the federal constitution. In

       re B.R., 875 N.E.2d 369, 372 (Ind. Ct. App. 2007), trans. denied. Like all rights,

       this right is not absolute. Id. A parent’s rights to her child may be terminated

       when the parent is unable or unwilling to meet her parental responsibilities. Id.

       Here, the parent’s interests must be subordinated to those of her child. Id. The

       purpose of termination is not punishment of the parent but protection of the

       child. Id.


[12]   By statute, as relevant here, a court “shall terminate” a parent-child

       relationship, I.C. § 31-35-2-8(a), if it finds the following conditions satisfied as

       alleged in a termination petition:


               (B) that one . . . 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 . . . ;

               (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.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 6 of 15
       Id. at § 4(b)(2)(B) through (D). We note that DCS was required to show the

       truth of only one allegation under subsection (B), i.e., that there was a

       reasonable probability either that the adverse conditions would not be remedied

       or that continuation of the relationship posed a threat to Child’s well-being. See

       In re K.E., 39 N.E.3d 641, 646 (Ind. 2015).


[13]   As required by statute, I.C. § 31-35-2-8(c), the court below entered findings and

       conclusions in support of its termination order. Specifically, as relevant here,

       the court found that


               9.    [Mother] failed to engage in services or visit [Child] and on
                     July 17, 2015, the plan for permanency was changed from
                     reunification to adoption.

               10. There is a reasonable probability that the conditions that
                   resulted in [Child’s] removal and continued placement
                   outside the home will not be remedied by her mother[,] who
                   has demonstrated by her almost total lack of effort that she
                   is unable or unwilling to parent.

               11. Continuation of the parent-child relationship poses a threat
                   to [Child’s] well-being in that it would pose as a barrier to
                   obtaining permanency for her through an adoption. . . .

               13. Termination of the parent-child relationship is in the best
                   interests of [Child]. Termination would allow her to be
                   adopted into a stable and permanent home where her needs
                   will be safely met.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 7 of 15
                14. There exists a satisfactory plan for the future care and
                    treatment of [Child],2 that being adoption.


       Appellant’s App. p. 16.


[14]   Mother argues that these findings are unsupported by sufficient evidence, that

       they are therefore clearly erroneous, and that, without them, the court’s

       ultimate judgment is unsupported by its findings and clearly erroneous.

       Appellant’s Br. pp. 17 (findings 9, 10), 20 (findings 11, 13), 22 (finding 14). The

       court’s remaining findings are unchallenged, and we accept them as true.

       McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997). We review the

       factual components of the challenged findings before proceeding to the legal

       conclusions embodied in them.


[15]   As a general observation, we agree with Mother that the factual record is not as

       full as it might be. However, we think this is largely due to Mother’s own

       evasion of any contact with Child, DCS, and the court during the two years of

       Child’s life. Critically, she failed to appear for the April 20, 2016, termination

       hearing with full knowledge that she was unrepresented at the time and thus

       would have no one to speak for her. Mother has had numerous chances to rebut

       DCS’s allegations but has refused to avail herself of any of them. Mother




       2
         The court’s order here uses the name “Aaliyah,” which is not the name of Child, Mother, or anyone
       connected to this case. At all other points in its order, however, the court referred to Child by her correct
       name. Mother makes no claim that her rights or Child’s were prejudiced by this scrivener’s error. We
       therefore disregard it as harmless. Ind. Appellate Rule 66(A) (Errors “sufficiently minor so as not to affect the
       substantial rights of the parties” are not grounds for relief.).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016            Page 8 of 15
       cannot convert this two-year refusal to participate into a one-time success on

       appeal.


[16]   As to finding 9, Mother argues that “[t]he record only establishes Mother failed

       to complete services,” Appellant’s Br. p. 17 (emphasis added), not that she

       “failed to engage in services or visit [Child],” as found by the court. Appellant’s

       App. p. 16 (emphasis added).


[17]   The family’s case manager testified that, “to [her] knowledge,” Mother never

       participated in any drug screens, drug abuse treatment, or visitation with Child

       as ordered by the court in its February 28, 2014, dispositional order. Tr. p. 11;

       see also Tr. p. 8 (“Mom has not participated . . . .”). Mother responds that,

       because the case manager was not assigned to the case until July 2015, “the

       record is silent” as to Mother’s involvement prior to that date. Appellant’s Br.

       p. 18. This is not at all true. The case manager had familiarized herself with

       Child’s case when she was assigned to it and testified on that basis. Tr. p. 10.

       Moreover, the case manager testified that, at the time of the court’s July 17,

       2015, permanency hearing, Mother had not been in contact with DCS and had

       been “noncompliant” with the dispositional order up to that time. Tr. p. 6. At

       the July 17, 2015, permanency hearing, at which Mother appeared by counsel

       but not in person, the court expressly found that Child’s “parents’ whereabouts

       are unknown,” that “they have not engaged in services,” and that they had not

       visited Child. Ex. Vol., Pet.’s Ex. 1. No evidence appears in the record, and

       Mother does not now assert, that Mother did ever participate in the services or

       visitation ordered by the court.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 9 of 15
[18]   The record discloses probative evidence from which the court could find that

       DCS had shown by clear and convincing evidence that Mother “failed to

       engage in services or visit [Child].” Appellant’s App. p. 16. Finding 9 is not

       clearly erroneous.


[19]   As to finding 10, Mother raises various possibilities which might have excused

       her failures to participate, such that it was error for the court to find an “almost

       total lack of effort” on her part demonstrating that she is “unable or unwilling

       to parent.” Appellant’s App. p. 16. Mother speculates that DCS might have

       never referred her to services, which might have justified her failure to

       participate in them. Appellant’s Br. p. 17. Mother further speculates that DCS

       might not have offered services to Mother while in prison, which might have

       been available to her there. Id. at 17-18. Mother finally speculates that her

       failure to participate in services and to visit Child might have been the result of

       her incarceration.3 Id.


[20]   DCS responds correctly that Mother assumed the risk of being unable to

       participate in Child’s upbringing by engaging in criminal conduct. In re A.C.B.,

       598 N.E.2d 570, 572 (Ind. Ct. App. 1992). DCS responds further that, even if

       Mother failed to participate in the first instance because she was incarcerated, it

       is undisputed that she never notified DCS of this fact in an attempt to remedy

       her and Child’s situation. “[A] parent may not sit idly by without asserting a




       3
           The nature and timing of Mother’s criminal matter are not clear from the record.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 10 of 15
       need or desire for services and then successfully argue that [s]he was denied

       services to assist [her] with [her] parenting.” In re B.D.J., 728 N.E.2d 195, 201

       (Ind. Ct. App. 2000). Most importantly, however, Mother’s speculative

       inferences, drawn in her own favor rather than in favor of the judgment below,

       are not entitled to any consideration under the applicable standard of review.


[21]   From the same facts that supported finding 9, the court below was permitted to

       find by clear and convincing evidence that Mother demonstrated “an almost

       total lack of effort” to parent Child. Appellee’s App. p. 16. Finding 10 is not

       clearly erroneous.


[22]   As to the conclusion embodied in finding 10, that there was a reasonable

       probability that Mother would not remedy the conditions that led to Child’s

       removal and continued placement outside Mother’s care, Mother claims that

       “no evidence” supported that conclusion. Appellant’s Br. p. 18. Again,

       Mother’s arguments amount to speculation about alternative conclusions the

       record might sustain. Two conditions led to Child’s removal from Mother’s

       care at the time of the CHINS proceedings in January and February 2014:

       Mother’s admitted drug abuse and need for treatment, and Mother’s admitted

       lack of stable housing. Mother claims that there is no evidence showing these

       conditions persisted at the time of the termination hearing on April 20, 2016.


[23]   As outlined above, however, the court found that Mother had not participated

       in the treatment services required of her. For more than eighteen months

       between the first dispositional hearing on February 28, 2014, and November


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 11 of 15
       2015, when DCS located her in state prison, Mother made no attempt

       whatsoever to communicate with DCS and with Child. After being found in

       prison in November 2015, Mother refused to even speak with the public

       defender representing her in the termination proceedings. The family’s case

       manager testified that Mother had been “given . . . a length of time to co[-

       ]operate and participate . . . and she hasn’t done that.” Tr. p. 8. “[T]he

       responsibility to make positive changes will stay where it must, on the parent.”

       Prince v. Dep’t of Child Servs., 861 N.E.2d 1223, 1231 (Ind. Ct. App. 2007).


[24]   In the eighteen months before DCS discovered her in state prison, Mother’s

       complete failure to remedy the conditions warranting removal, and her evident

       unwillingness or inability to show that she had, would, or cared to do so,

       entitled the court below to find a reasonable probability that Mother would not

       do so in the future. See Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d

       366, 372 (Ind. Ct. App. 2007) (“A pattern of unwillingness to deal with

       parenting problems and to cooperate with those providing social services, in

       conjunction with unchanged conditions, support a finding that there exists no

       reasonable probability that the conditions will change.”), trans. denied. The

       court’s conclusion was supported by probative evidence and is not clearly

       erroneous.4




       4
        Under I.C. § 31-35-2-4(b)(2)(B), DCS had to prove either the conclusion embodied in finding 10, that there
       was a reasonable probability that Mother would not remedy the adverse conditions, or the conclusion
       embodied in finding 11, that there was a reasonable probability that continuation of the parent-child

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016       Page 12 of 15
[25]   As to the conclusion embodied in finding 13, that termination of the parent-

       child relationship was in Child’s best interests, Child’s GAL and the family’s

       case manager were both of the opinion that it was because it would facilitate

       Child’s adoption. Ex. Vol., GAL Ex. I, ¶ 7; Tr. p. 8. As Mother herself points

       out, Child has already been placed in four different homes, Appellant’s Br. 23,

       heightening the need for permanency that adoption of Child by Child’s relative

       would provide. GAL Ex. I, ¶ 7. Child’s GAL thought that Mother was unable

       to provide such permanency. Id. Mother argues that she should be given more

       time to participate in services to and “prov[e] herself to be an appropriate

       parent.” Appellant’s Br. p. 24. More time, Mother argues, would not

       undermine adoption and could facilitate it if, “upon further reflection,” Mother

       changes her mind about wanting or being able to parent Child. Appellant’s Br.

       p. 21.


[26]   Mother points to Rowlett v. Vanderburgh Cty. Office of Family & Children, 841

       N.E.2d 615 (Ind. Ct. App. 2006), trans. denied, reversing termination of a

       father’s parental rights to allow him time to “demonstrate the desire and ability

       to achieve a meaningful reunification with his children.” Id. at 623. That case,

       however, is replete with evidence of the father’s serious, good faith efforts to

       reform his conduct while incarcerated: more than 1,000 hours of individual and

       group services, twelve hours of college credit, employment and housing already




       relationship posed a threat to Child’s well-being. Because we have determined that DCS prevailed on the
       former, we do not address the latter.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016      Page 13 of 15
       secured prior to release from prison, and his testimony at the termination

       hearing that drugs “[had] ruined everything about [him].” Id. at 622. No

       evidence appears here that Mother has made any similar effort.


[27]   Under the facts and circumstances before it, the court was permitted to find that

       Child’s need for permanency outweighed Mother’s desire for additional time.

       See Castro v. Ind. Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App.

       2006) (“A parent's historical inability to provide adequate housing, stability and

       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child's best

       interests. . . . [Child] is in need of stability and permanency now . . . and . . .

       there is no guarantee that Castro will be a suitable parent once he is released . . .

       .”). The court’s conclusion that termination was in Child’s best interests was

       not clearly erroneous.


[28]   Finally, as to the conclusion embodied in finding 14, that DCS’s plan to have

       Child adopted by her relative is satisfactory, Mother argues that it is not

       satisfactory because DCS has not shown the relative to be a fit parent.

       Appellant’s Br. pp. 20-21. DCS responds that no statute or decision required it

       to do so, and, moreover, that the adoption court, not the termination court, is

       charged with deciding whether a particular adoption is in the child’s best

       interests. Appellee’s Br. p. 29.


[29]   In addition, Mother relies on no authority for the proposition that DCS must

       show or the termination court must find that, where the permanency plan is


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 14 of 15
       adoption, the intended adoptive parent “is capable [of] and willing to

       [undertake] a lifetime of parenting” Child. Appellant’s Br. p. 20. To the

       contrary, given a willing adoptive parent and no indication that the adoptive

       parent would be unfit, adoption may be per se satisfactory. In re A.K., 755

       N.E.2d 1090, 1098 (Ind. Ct. App. 2001); see also In re D.D., 804 N.E.2d 258, 268

       (Ind. Ct. App. 2004) (To be satisfactory, the “plan 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.”), trans. denied. Moreover, Child’s

       GAL, with first-hand knowledge, was of the opinion that Child’s current

       placement with her relative safely met Child’s needs. Ex. Vol., GAL Ex. I, ¶ 4.

       The family’s case manager was of the same opinion. Tr. p. 9. The court’s

       conclusion that this constitutes a satisfactory plan was not clearly erroneous.


                                                 Conclusion

[30]   For these reasons, we conclude that the court’s order terminating the parental

       rights of Mother in Child was not clearly erroneous.


[31]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016   Page 15 of 15
