MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                    Feb 27 2019, 9:53 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
Matthew J. McGovern                                       Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana

                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 27, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of M.R.S. (Minor Child);                                  18A-JT-2012
T.L.S. (Mother),                                          Appeal from the Floyd Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable J. Terrence Cody,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               22C01-1712-JT-921
Services,
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2012 | February 27, 2019                 Page 1 of 10
                                              Statement of the Case
[1]   T.L.S. (“Mother”) appeals the trial court’s termination of her parental rights

      over her minor child M.R.S. (“Child”). Mother1 raises a single issue for our

      review, which we restate as follows:


                          1. Whether the trial court erred when it concluded that
                             the conditions that resulted in Child’s removal from
                             Mother’s care would not be remedied.


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


[2]   We affirm.


                                     Facts and Procedural History
[3]   Mother gave birth to Child in July 2011. In January 2015, the Indiana

      Department of Child Services (“DCS”) received a report that Mother was

      abusing drugs. On April 23, 2015, DCS filed a petition alleging Child to be a

      Child in Need of Services (“CHINS”). After a hearing, the court adjudicated

      Child to be a CHINS, and on August 20, 2015, the juvenile court entered its

      dispositional order and instructed Mother to do the following:


                 1. Maintain suitable, safe, and stable housing;

                 2. Secure and maintain a legal and stable source of income;




      1
          Father does not join this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2012 | February 27, 2019   Page 2 of 10
              3. Not use, consume, manufacture, trade, distribute or sell any illegal
                 controlled substances;

              4. Submit to random drug screenings;

              5. Attend drug and alcohol classes to address substance abuse issues;

              6. Enroll in programs recommended by the family case manager or
                 other service providers within a reasonable period of time, not to
                 exceed thirty days, and participate in the program without delay or
                 missed appointments. If required to obtain an assessment, arrange to
                 complete that assessment within thirty days.

[4]   Mother did not comply with the court’s order and, instead, continued to use

      drugs. The family case manager (“FCM”), Tia Muir, referred Mother to

      various services, including drug and rehabilitation services and home-based

      therapy. Mother sporadically participated in services, and DCS removed Child

      from Mother’s care on September 14, 2015. DCS placed Child with foster

      parents, A.C. and L.C. The permanency plan initially in place was for

      reunification of Mother and Child.


[5]   Thereafter, Mother continued repeatedly to fail services and use drugs. Mother

      tested positive for drugs on 62% of her drug screens. Due to Mother’s

      noncompliance with the dispositional order, DCS moved to change the

      permanency plan for Child to adoption. Accordingly, on December 1, 2017,

      DCS filed a petition to terminate Mother’s parental rights.


[6]   On January 2, 2018, the trial court held a fact-finding termination hearing at

      which numerous witnesses testified, including both Mother and FCM Muir. In

      her testimony, Mother acknowledged that it is “[p]robably not” possible to

      properly raise a child while addicted to illegal drugs. Tr. Vol. 2 at 215. Mother

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2012 | February 27, 2019   Page 3 of 10
      also admitted that there were illegal drugs inside the residence she shared with

      Child. Id. at 238.


[7]   After that hearing, the trial court entered the following findings of fact and

      conclusions of law:


              There is a reasonable probability that the conditions that resulted
              in [C[hild’s removal or the reasons for the placement outside the
              parent’s home will not be remedied in that [Mother] has
              continued to test positive for illicit substances, particularly
              marijuana and cocaine, throughout the life of the CHINS case
              and has not completed services to address her substance abuse
              issues.


              Termination is in [C]hild’s best interests . . . in that: [Mother has
              not] completed services to address the reasons for DCS
              involvement and removal of [C]hild, making reunification
              impossible. Therefore, [C]hild can only be provided a safe, stable
              home free from abuse and neglect by [terminating] parental rights
              and placing him for adoption.


      Appellant’s App. Vol. 2 at 53-54. In light of its findings and conclusions, the

      court ordered the termination of Mother’s parental rights. This appeal ensued.


                                     Discussion and Decision
                                                    Overview

[8]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2012 | February 27, 2019   Page 4 of 10
      denied. However, a trial court must subordinate the interests of the parents to

      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

      832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

      proper where a child’s emotional and physical development is threatened. Id.

      Although the right to raise one’s own child should not be terminated solely

      because there is a better home available for the child, parental rights may be

      terminated when a parent is unable or unwilling to meet his or her parental

      responsibilities. Id. at 836.


[9]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


              (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.

                                                      ***

              (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 18A-JT-2012 | February 27, 2019   Page 5 of 10
       Ind. Code § 31-35-2-4(b)(2) (2018). DCS’s “burden of proof in termination of

       parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

       Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

       I.C. § 31-37-14-2).


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

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

       Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

       denied. Instead, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

       court’s unique position to assess the evidence, we will set aside the court’s

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied.


[11]   Here, in terminating Mother’s parental rights, the trial court entered findings of

       fact and conclusions thereon following an evidentiary hearing. When a trial

       court’s judgment is based on such findings and conclusions, we apply a two-

       tiered standard of review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d

       143, 147 (Ind. 2005). First, we determine whether the evidence supports the

       findings, and, second, we determine whether the findings support the judgment.

       Id. “Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2012 | February 27, 2019   Page 6 of 10
[12]   On appeal, Mother contends that the trial court erred when it concluded: that

       the conditions that resulted in Child’s removal will not be remedied; that the

       continuation of the parent-child relationship poses a threat to Child’s well-

       being; and that termination is in Child’s best interests. However, as Indiana

       Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need only

       consider the following two issues: whether the conditions that resulted in

       Child’s removal will not be remedied and whether termination of Mother’s

       parental rights is in Child’s best interests.


                                       Issue One: Failure to Remedy

[13]   We first address the trial court’s conclusion that there is a reasonable

       probability that the conditions that resulted in Child’s removal or the reasons

       for placement outside Mother’s home will not be remedied. In determining

       whether the conditions that led to a child’s placement outside the home will not

       be remedied, a juvenile court is required to (1) ascertain what conditions led to

       the child’s removal or placement and retention outside the home; and (2)

       determine whether there is a reasonable probability that those conditions will

       not be remedied. R.C. v. Ind. Dep’t of Child Servs. (In re K.T.K.), 989 N.E.2d

       1225, 1231 (Ind. 2013). As for the first step, here the trial court found that DCS

       had removed Child from Mother’s home and placed him in foster care in part

       due to Mother’s severe substance abuse issues, which prevented her from

       providing the care and supervision that Child required.


[14]   In order to determine whether there is a reasonable probability that the

       conditions that resulted in removal will not be remedied, the trial court should
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2012 | February 27, 2019   Page 7 of 10
       assess a parent’s “fitness” at the time of the termination hearing, taking into

       consideration any evidence of changed conditions. E.M. v. Ind. Dep’t of Child

       Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). The court must weigh any

       improvements the parent has made since removal against the parent’s “habitual

       patterns of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” Id. When making such decisions, trial courts

       should consider evidence of a “parent’s prior criminal history, drug and alcohol

       abuse, history of neglect, failure to provide support, lack of adequate housing,

       and employment.” Evans v. St. Joseph Cty. Off. of Fam. & Child. (In re A.L.H.), 774

       N.E.2d 896, 990 (Ind. Ct. App. 2002).


[15]   The trial court found that, over the course of two years after Child’s removal:

       Mother did not participate in the majority of services offered to her; she

       continued to test positive for drugs—indeed, she tested positive for cocaine one

       week before the final fact-finding hearing; and there is a reasonable probability

       that Mother’s substance abuse would continue. Additionally, Mother admitted

       during the fact-finding hearing on the petition to terminate her rights that it was

       “[p]robably not” possible for her to properly raise Child with her addictions.

       Tr. Vol. 2 at 215. She further admitted that she had kept illegal substances

       inside the residence where she and Child had lived. Id. at 238. Accordingly,

       we cannot say that the trial court erred when it concluded that there is a

       reasonable probability that Mother’s drug use would continue and would

       interfere with her ability to adequately care for Child.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2012 | February 27, 2019   Page 8 of 10
                                     Issue Two: Child’s Best Interests

[16]   Mother also asserts that the trial court clearly erred when it concluded that

       termination of her parental rights is in Child’s best interests. In determining

       what is in a child’s best interests, a juvenile court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. A.S. v. Ind.

       Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A

       parent’s historical inability to provide “adequate housing, stability, and

       supervision,” in addition to the parent’s current inability to do so, supports

       finding termination of parental rights is in the best interests of the child. Id.


[17]   Regarding Child’s best interests, the trial court found: that Child had been in

       foster care for over two years; that Child was bonded with his foster family; and

       that prolonging Child’s permanency plan would be detrimental to Child.

       Additionally, both Child’s court appointed special advocate (“CASA”) and

       FCM Muir testified that termination would be in the best interests of Child.


[18]   Nevertheless, Mother asserts on appeal that the trial court’s judgment is clearly

       erroneous because there is no evidence that Mother neglected Child and that

       her rights should not be terminated “for the sole reason that she is an addict.”

       Appellant’s Br. at 17. We do not terminate these rights to punish a parent, but

       to protect a child. Lang v. Starke Cty. Off. of Fam. & Child., 861 N.E.2d 366, 371

       (Ind. Ct. App. 2007), trans. denied. When making its decision, the court must

       subordinate the interests of the parents to those of the child. See Stewart v. Ind.

       Dep’t of Child Servs. (In re J.S.), 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The

       court need not wait until a child is irreversibly harmed before terminating the
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2012 | February 27, 2019   Page 9 of 10
       parent-child relationship.” Id. Moreover, this Court has previously held that

       recommendations of the family case manager and court-appointed advocate to

       terminate parental rights, coupled with 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. Id. The trial court’s

       judgment is supported by the evidence, and Mother’s argument is merely a

       request for the Court to reweigh the evidence on appeal, which we cannot do. 2


[19]   In sum, we affirm the trial court’s termination of Mother’s parental rights over

       Child.


[20]   Affirmed.


       Pyle, J., and Altice, J., concur.




       2
         As we conclude that the trial court’s findings are supported by the record and that those findings support
       the trial court’s judgment, we need not consider Mother’s additional argument that the trial court’s findings
       are “too general” to support the termination of her parental rights. Appellant’s Br. at 15.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2012 | February 27, 2019                Page 10 of 10
