MEMORANDUM DECISION
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                                        FILED
the defense of res judicata, collateral                                    Apr 22 2020, 11:20 am
estoppel, or the law of the case.                                                   CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                       Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 22, 2020
of the Parent–Child Relationship                          Court of Appeals Case No.
of R.S. and J.P. (Minor                                   19A-JT-1895
Children)                                                 Appeal from the Orange Circuit
and                                                       Court
                                                          The Honorable Steven L. Owen,
T.A. (Mother) and J.S. (Father),                          Judge
Appellants-Respondents,                                   Trial Court Cause Nos.
                                                          59C01-1809-JT-179
        v.                                                59C01-1809-JT-183

The Indiana Department of
Child Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020                           Page 1 of 19
      Bradford, Chief Judge.



                                                 Case Summary
[1]   T.A. (“Mother”) and J.S. (“Father”), (collectively “Parents”), are the biological

      parents of R.S. (born July 25, 2014), and Mother is the biological parent of J.P.

      (born May 14, 2013).1 In September of 2016, following the death of his father,

      J.P. was adjudicated to be a child in need of services (“CHINS”) due to

      Mother’s substance abuse. In February of 2017, R.S. was adjudicated a CHINS

      due to Parents’ substance abuse. In September of 2018, the Department of

      Child Services (“DCS”) petitioned to terminate Parents’ parental rights to R.S.

      and Mother’s parental rights to J.P. On July 1, 2019, the juvenile court ordered

      that Parents’ parental rights to the Children be terminated.2 Parents contend

      that the juvenile court’s denial of their motions to dismiss and termination of

      their parental rights was clearly erroneous. We affirm.




      1
          J.P.’s biological father was his custodial parent until his death in 2016.
      2
          R.S. and J.P. will be referred to collectively as the “Children.”

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020    Page 2 of 19
                            Facts and Procedural History
[2]   In July of 2015, DCS became involved with Parents and the Children while

      investigating a report concerning Parents’ substance abuse. In October of 2015,

      Parents agreed to participate in an informal adjustment program. Parents,

      however, failed to comply with the terms of the informal adjustment by

      screening positive for illegal substances. In March of 2016, R.S. was removed

      from Parents’ care, and DCS petitioned to have R.S. adjudicated a CHINS due

      to Parents’ substance abuse and arrests. In July of 2016, J.P. was removed from

      Mother’s care, and DCS petitioned to have J.P. adjudicated a CHINS due to

      Mother’s substance abuse and the death of J.P.’s father. In September of 2016,

      J.P. was adjudicated a CHINS. In February of 2017, R.S. was adjudicated a

      CHINS. In July of 2017, the juvenile court held a dispositional hearing, at

      which it ordered Parents to maintain weekly contact with the family case

      manager (“FCM”); notify the FCM of any address or telephone number

      changes; keep all appointments with service providers; maintain suitable and

      stable housing; refrain from using, consuming, or selling any controlled

      substances; complete a substance-abuse assessment and follow all

      recommendations; submit to random drug screens; and attend all visitation.


[3]   On September 14, 2018, DCS petitioned for the termination of Parents’ parental

      rights to R.S. and, four days later, petitioned for the termination of Mother’s

      parental rights to J.P. On May 1, 2019, the juvenile court held a factfinding

      hearing regarding both of DCS’s termination petitions (“TPR petitions”). On



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 3 of 19
July 16, 2019, the juvenile court terminated Parents’ parental rights to R.S. In

doing so, the juvenile court found as follows:


        Services

        14. The Court ordered Father and Mother to participate in
        substance use assessment, substance use treatment, random drug
        screens, and visitation.

        15. DCS offered services to Father, including: individual
        therapy/home based therapy; substance use assessment at
        Southern Hills Counseling Center; random drug screens; and
        supervised visits.

        16. DCS offered services to Mother, including: individual
        therapy; substance use assessment; random drug screens; and
        supervised visits.

        17. Father never demonstrated consistency in attendance in any
        services.

        18. The Court ordered services for Father suspended on October
        2, 2018. Father continued to receive services through a
        companion/sibling case after October 2, 2018.

        19. Father failed to attend any substance use treatment until
        October-November 2018.

        20. Carrie Andrews, therapist with LifeSpring [formerly Southern
        Hills Counseling Center] met with Father in 2016 to complete a
        substance use assessment, but Father did not follow through with
        any substance use treatment.

        21. Carrie Andrews met again with Father in November 2018
        and completed a substance use assessment for Father. At that
        time, Ms. Andrews recommended that Father participate in (1)
        Individual Therapy for one (1) hour a week; and (2) Group
        Therapy for one (1) hour per week.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 4 of 19
        22. Father attended one (1) Individual Therapy appointment and
        then canceled the appointment scheduled for November 20,
        2018. Father failed to schedule any further appointments.

        23. Father attended four (4) Group Therapy sessions, and then
        Father no showed for remaining sessions. LifeSpring discharged
        Father from Group Therapy on February 5, 2019 for lack of
        compliance.

        24. Father has not contacted Carrie Andrews to restart Individual
        Therapy or Group Therapy.

        25. Carrie Andrews testified credibly that Father did not show
        any improvement in addressing his substance use problems from
        her assessment in 2016 until her assessment in November 2018.

        26. Father did not report to Ms. Andrews that he engaged in any
        substance use program between 2016 and 2018.

        27. Ms. Andrew[s] testified credibly that Father did not
        demonstrate an understanding of his substance use or how to
        address his substance use problem.

        28. DCS requested that Father participate in weekly drug screens.
        During the pendency of this case, Father repeatedly refused to
        submit to drug screens for DCS.

        29. Father met with Emily Clearwater (IHBS Therapist) for a
        Substance Use Assessment on October 17, 2018 and October 21,
        2018. Ms. Clearwater recommended further substance use
        treatment for Father, but the Court suspended Father’s services
        before Father engaged in treatment.

        30. Father reported to Emily Clearwater (IHBS Therapist) that
        Father used marijuana in the previous three (3) months.

        31. During the pendency of this case, Father failed to contact
        DCS weekly. [DCS Family Case Manager Karen] Howson
        would have contact with Father only at Court hearings.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 5 of 19
        32. During the pendency of this case, [court-appointed special
        advocate] Robin Brown (CASA) attempted to contact Father, but
        CASA was not successful in locating and talking to Father.

        33. During the pendency of this case, Father failed to regularly
        attend Court hearings in the CHINS case, and Father failed to
        appear for the Fact Finding Hearing to address the termination of
        his parental rights.

        34. Father was incarcerated for brief periods during the pendency
        of this case.

        35. Mother never demonstrated consistency in attendance in any
        services.

        36. The Court ordered services for Mother to be suspended on
        October 2, 2018.

        37. During the pendency of this case, Mother failed to maintain
        weekly contact with DCS.

        38. Mother has never maintained stable housing. Mother failed
        to keep FCM Howson informed of Mother’s address. Mother
        moved frequently and would not notify DCS of her new address
        or telephone number.

        39. During the pendency of this case, Robin Brown (CASA)
        attempted to contact/visit Mother, but the phone numbers that
        Mother provided never worked. CASA was not able to locate
        Mother.

        40. Mother completed a substance use assessment at Southern
        Hills Counseling Center in 2016, but Mother failed to complete
        substance use treatment.

        41. DCS requested that Mother participate in weekly drug
        screens. During the pendency of this case, Mother refused to
        submit to drug screens for DCS.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 6 of 19
        42. In March 2017, Mother was arrested and charged with
        Possession of Methamphetamine (a Level 6 Felony) in Orange
        County Superior Court, Case No. 59D01-1703-F6-000269. (DCS
        Exhibit 5) On May 10, 2017, Mother plead guilty to this charge.

        43. While incarcerated at Orange County Jail in February 2018,
        Mother admitted to using Methamphetamine to FCM Howson.

        44. FCM Howson offered services and visits to Mother upon
        Mother’s release from jail in April 2018, but Mother failed to
        contact FCM Howson to get services or visits established.

        45. Mother failed to participate in any substance use treatment
        during the pendency of this case.

        46. During the pendency of this case, Mother failed to regularly
        attend Court hearings in the CHINS case, and Mother failed to
        appear for the Fact Finding Hearing to address the termination of
        her parental rights.

        47. At the time of the Fact Finding Hearing, the Orange County
        Superior Court had issued a warrant for the arrest of [Mother] for
        probation violations in Cause No. 59D01-1603-F6-000247.

        48. Mother’s probation violation was based on a failed drug
        screen.

        49. At the time of the Fact Finding Hearing, FCM Howson
        remains concerned with substance use by Mother and Father, as
        use of illegal substances affects the parents’ ability to properly
        supervise and care for the child.

        Visits

        50. DCS offered weekly supervised visits with [R.S] to Mother
        and Father.

        51. During the pendency of this case, Father failed to regularly
        attend visits with the child.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 7 of 19
        52. Father’s last visit with [R.S.] occurred on October 28, 2017.

        53. Father has not contact FCM Howson since October 28, 2017
        to request a visit with [R.S.].

        54. During the pendency of this case, Mother failed to regularly
        attend visits with the child.

        55. Mother’s last visit with [R.S.] occurred on February 26, 2018.

        56. FCM Howson offered visits to Mother upon Mother’s release
        from jail in April 2018, but Mother failed to contact FCM
        Howson to get visits established.


Appellant’s App. Vol. II pp. 120–23. That same day, the juvenile court also

terminated Mother’s parental rights to J.P. and in doing so, found that:


        Services

        15. At the Dispositional Hearing, the Court ordered Mother to
        participate in the same services as those ordered for Mother in
        the sibling/companion case, Cause No. 59C01-1603-000056.

        16. DCS offered services to Mother, including: individual
        therapy; substance use assessment; random drug screens; and
        supervised visits.

        17. Mother never demonstrated consistency in attendance in any
        services.

        18. The Court ordered services for Mother to be suspended on
        October 2, 2018.

        19. During the pendency of this case, Mother failed to maintain
        weekly contact with DCS.

        20. Mother has never maintained stable housing. Mother failed
        to keep FCM Howson informed of Mother’s address. Mother

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 8 of 19
        moved frequently and would not notify DCS of her new address
        or telephone number.

        21. During the pendency of this case, Robin Brown (CASA)
        attempted to contact/visit Mother, but the phone numbers that
        Mother provided never worked. CASA was not able to locate
        Mother.

        22. Mother completed a substance use assessment at Southern
        Hills Counseling Center in 2016, but Mother failed to complete
        substance use treatment.

        23. DCS requested that Mother participate in weekly drug
        screens. During the pendency of this case, Mother refused to
        submit to drug screens for DCS.

        24. In March 2017, Mother was arrested and charged with
        Possession of Methamphetamine (a Level 6 Felony) in Orange
        County Superior Court, Cause No. 59D01-1703-F6-000269.
        (DCS Exhibit 5) On May 10, 2017, Mother plead guilty to this
        charge.

        25. While incarcerated at Orange County Jail in February 2018,
        Mother admitted to using Methamphetamine to FCM Howson.

        26. FCM Howson offered services and visits to Mother upon
        Mother’s release from jail in April 2018, but Mother failed to
        contact FCM Howson to get services or visits established.

        27. Mother failed to participate in any substance use treatment
        during the pendency of this case.

        28. During the pendency of this case, Mother failed to regularly
        attend Court hearings in the CHINS case, and Mother failed to
        appear for the Fact Finding Hearing to address the termination of
        her parental rights.

        29. At the time of the Fact Finding Hearing, the Orange County
        Superior Court had issued a warrant for the arrest of [Mother] for

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 9 of 19
              probation violations in Cause No. 59D01-1603-F6-000247. (DCS
              Exhibit 6)

              30. Mother’s probation violation was based on a failed drug
              screen.

              31. At the time of Fact Finding Hearing, FCM Howson remains
              concerned with substance use by Mother, as use of illegal
              substances affects the parents’ ability to properly supervise and
              care for the child.

              Visits

              32. DCS offered weekly supervised visits with [J.P.] to Mother.

              33. During the pendency of this case, Mother failed to regularly
              attend visits with the child.

              34. Mother’s last visit with [J.P.] occurred on February 26, 2018.

              35. FCM Howson offered visits to Mother upon Mother’s release
              from jail in April 2018, but Mother failed to contact FCM
              Howson to get visits established.


      Appellant’s App. Vol. III pp. 84–85.



                                 Discussion and Decision
                                      I. Motions to Dismiss
[4]   Because the juvenile court failed to hold a factfinding hearing within ninety

      days after DCS petitioned for the termination of Parents’ parental rights

      pursuant to Indiana Code section 31-35-2-6, Parents contend that the juvenile

      court erroneously denied their motions to dismiss. A timely hearing on DCS’s

      TPR petitions is required under Indiana law. “Matters of statutory

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 10 of 19
      interpretation present pure questions of law; as such, these questions are

      reviewed de novo.” Rodriguez v. State, 129 N.E.3d 789, 793 (Ind. 2019). Indiana

      Code section 31-35-2-6 provides that


              (a) Except when a hearing is required after June 30, 1999, under
              section 4.5 of this chapter, the person filing the petition shall
              request the court to set the petition for a hearing. Whenever a
              hearing is requested under this chapter, the court shall:

                       (1) commence a hearing on the petition not more than
                       ninety (90) days after a petition is filed under this chapter;
                       and

                       (2) complete a hearing on the petition not more than one
                       hundred eighty (180) days after a petition is filed under
                       this chapter.

              (b) If a hearing is not held within the time set forth in subsection
              (a), upon filing a motion with the court by a party, the court shall
              dismiss the petition to terminate the parent-child relationship
              without prejudice.


[5]   DCS filed its TPR petitions in September of 2018, and the factfinding hearing

      regarding those petitions was ultimately held in May of 2019. This hearing

      clearly fell outside of the timeframe required under Indiana Code section 31-35-

      2-6; however, we conclude that Parents invited this error and cannot now seek

      to use the error to their advantage. Invited error, which is based on the legal

      principle of estoppel, forbids a party from taking “advantage of an error that she

      commits, invites, or which is the natural consequence of her own neglect or

      misconduct.” Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018) (quoting Wright v.

      State, 828 N.E.2d 904, 907 (Ind. 2005)). “A party may not invite error, then

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 11 of 19
      later argue that the error supports reversal, because error invited by the

      complaining party is not reversible error.” Booher v. State, 773 N.E.2d 814, 823

      (Ind. 2002).


[6]   While it is true that Mother orally moved to dismiss the TPR petitions at a

      hearing in February of 2019 and Parents filed motions to dismiss in March of

      2019, their actions and omissions, prior and subsequent to those stated above,

      invited the untimely factfinding hearing.3 First, on November 14, 2018, the

      juvenile court held a pretrial conference and set the factfinding hearing for

      January 25, 2019, a date which fell outside the timeframe required by Indiana

      Code section 31-35-2-6. There is no indication in the record that Parents

      objected to the setting of that date. See Matter of N.C., 83 N.E.3d 1265, 1268

      (Ind. Ct. App. 2017) (“Having acquiesced to the setting of a fact-finding hearing

      date outside the statutory parameters, Father has preserved no issue for

      appellate review regarding the application of Indiana Code Section 31-35-2-6.”).

      Moreover, when the factfinding hearing was rescheduled for March 13, 2019,

      both Parents requested a continuance. At the hearing on March 13, 2019,

      Mother’s counsel stated, “Well, Your Honor, what I would say is by my asking

      for a continuance, whatever issue I may have had with an out-of-time TPR, I

      think I waive that because I’m saying that it’s more important to me […] to get




      3
       We note that in January of 2019, DCS moved to dismiss the TPR petitions based on Indiana Code section
      31-35-2-6 and that one was ultimately granted by the juvenile court. The juvenile court, however, vacated its
      order dismissing the TPR petition, noting that the granting of said motion was a clerical error, and DCS
      withdrew both of its motions to dismiss the TPR petitions.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020                   Page 12 of 19
      my client here than it is to be within the time frame.” Tr. Vol. II pp. 33–34. The

      juvenile court’s order granting the continuance and setting the factfinding for

      May 1, 2019, stated that


              Mother by counsel requests a continuance of the Fact Finding
              Hearing. Mr. Smith reports that he has not had contact with
              [Mother] since his appointment as subsequent attorney for the
              Mother. Mr. Smith agrees that any delay in the Fact Finding
              Hearing be attributable to the parents as the continuance is
              requested for their benefit.

              Father by counsel requests a continuance of the Fact Finding
              Hearing. Ms. Fullen reports that she can not confirm that
              [Father] had notice of the Fact Finding Hearing date. Ms. Fullen
              agrees that any delay in the Fact Finding Hearing be attributable
              to the parents as the continuance is requested for their benefit.


      Appellant’s App. Vol. II p. 75. By acquiescing to an untimely factfinding

      hearing date in November of 2018 and acknowledging that they were forfeiting

      any objection to the untimeliness by seeking a continuance in March of 2019,

      Parents invited any error that occurred under Indiana Code section 31-35-6-2.



                           II. Termination of Parental Rights
[7]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “Though

      it’s been oft-stated, it bears repeating: the parent–child relationship is one of the

      most valued relationships in our culture.” Matter of M.I., 127 N.E.3d 1168,

      1170–71 (Ind. 2019) (internal quotations and citations omitted). Parental rights,
      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 13 of 19
      however, are not absolute and must be subordinated to the child’s interests

      when determining the proper disposition of a petition to terminate the parent–

      child relationship. Bester, 839 N.E.2d at 147. Therefore, when parents are

      unwilling or unable to fulfill their parental responsibilities their rights may be

      terminated. Id.


[8]   In reviewing the termination of parental rights on appeal, we neither reweigh

      the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

      Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

      We consider only the evidence and reasonable inferences therefrom which are

      most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

      court has entered findings of facts and conclusions of law, our standard of

      review is two-tiered. Id. First, we determine whether the evidence supports the

      factual findings, second, whether the factual findings support the judgment. Id.

      The juvenile court’s findings and judgment will only be set aside if found to be

      clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

      drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

      2005). “A judgment is clearly erroneous if the findings do not support the

      juvenile court’s conclusions or the conclusions do not support the judgment.”




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 14 of 19
      Id. When the juvenile court’s findings are unchallenged on appeal, we accept

      them as true. See In re S.S., 120 N.E.3d 605, 610 (Ind. Ct. App. 2019).4


[9]   Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

      support a termination of parental rights. Of relevance to this case, DCS was

      required to establish by clear and convincing evidence


              (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[.]

                       [and]

              (C) that termination is in the best interests of the child[.]




      4
        Parents challenge only the juvenile court’s finding that “[a]t the time of Fact Finding Hearing, FCM
      Howson remains concerned with substance use by Mother, as use of illegal substances affects the parents’
      ability to properly supervise and care for the child.” Appellant’s App. Vol. III p. 85. FCM Howson, however,
      testified to her concerns with Mother’s substance abuse, which the juvenile court was entitled to believe and
      did. We will not second-guess the juvenile court’s determination of FCM Howson’s credibility.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020                   Page 15 of 19
       Ind. Code § 31-35-2-4(b)(2).5 In challenging the sufficiency of the evidence to

       sustain the termination of their parental rights, Parents contend that the juvenile

       court erred by concluding that (1) there is a reasonable probability that the

       conditions that resulted in the Children’s removal would not be remedied and

       (2) termination of their parental rights was in the Children’s best interests.



                        A. Indiana Code Section 31-35-2-4(b)(2)(B)
[10]   Parents contend that there is insufficient evidence to establish a reasonable

       probability that the conditions that resulted in the Children’s removal would

       not be remedied.


                In determining whether the conditions that resulted in the
                child[ren]’s removal…will not be remedied, we engage in a two-
                step analysis[.] First, we identify the conditions that led to
                removal; and second, we determine whether there is a reasonable
                probability that those conditions will not be remedied. In the
                second step, the trial court must judge a parent’s fitness as of the
                time of the termination proceeding, taking into consideration
                evidence of changed conditions—balancing a parent’s recent
                improvements against habitual pattern[s] of conduct to determine
                whether there is a substantial probability of future neglect or
                deprivation. We entrust that delicate balance to the trial court,
                which has discretion to weigh a parent’s prior history more
                heavily than efforts made only shortly before termination.
                Requiring trial courts to give due regard to changed conditions




       5
        It is not disputed that the Children had been removed from Parents for at least six months under a
       dispositional decree and that there was a satisfactory plan for the care and treatment of the Children, both
       required findings pursuant to Indiana Code section 31-35-2-4(b)(2).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020                     Page 16 of 19
               does not preclude them from finding that parents’ past behavior
               is the best predictor of their future behavior.


       In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (cleaned up).


[11]   Here, the condition that led to the Children’s removal were allegations of

       Parents’ substance abuse. Since DCS became involved in 2015, Parents have

       failed to successfully complete any recommended or court-ordered services,

       including substance-abuse treatment or therapy, which ultimately led to their

       services being suspended by the juvenile court in October of 2018. Parents have

       repeatedly refused to participate in drug screening. Father admitted to using

       marijuana, and Mother admitted to using methamphetamine. Moreover, both

       Parents have spent time incarcerated during this matter. In May of 2017,

       Mother pled guilty to Level 6 felony methamphetamine possession and later

       violated the terms of her probation by failing a drug screen. Finally, at the time

       of the factfinding hearing, FCM Howson still remained concerned with Parents’

       substance abuse. The record is devoid of any evidence that would indicate that

       Parents will remedy their substance-abuse issues.


[12]   Parents seem to argue that the juvenile court erroneously focused on their

       historical failures rather than their capacity to parent the Children at the time of

       the factfinding hearing, citing Mother’s suitable housing and the Children’s

       happiness. This argument, however, fails for multiple reasons. First, the

       juvenile court was well within its discretion to weigh Parents’ historical failures

       more heavily than their efforts made shortly before the termination hearing,

       finding this past behavior to be the best predictor of Parents’ future behavior. In
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 17 of 19
       re E.M., 4 N.E.3d at 643. Second, Mother’s current housing situation, even if

       we assume that it is, in fact, suitable, does not demonstrate that Parents have

       addressed their substance abuse issues, which was the condition that lead to

       removal. Finally, it seems to us that any happiness and well-being the Children

       are currently enjoying can only be attributed to the care they have received from

       their foster parents. The juvenile court did not abuse its discretion by

       concluding that the conditions that led to the Children’s removal would not be

       remedied.


                       B. Indiana Code Section 31-35-2-4(b)(2)(C)
[13]   Parents contend that there is insufficient evidence to support the juvenile court’s

       conclusion that termination of their parental rights was in the Children’s best

       interests. We are mindful that, in determining what is in the best interests of a

       child, the juvenile court must look beyond factors identified by DCS and

       consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.

       App. 2009). The juvenile court need not wait until a child is irreversibly harmed

       before terminating the parent–child relationship because it must subordinate the

       interests of the parents to those of the children. McBride v. Monroe Cty. Office of

       Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have often-

       held that recommendations from the FCM and CASA to terminate parental

       rights, in addition to evidence that conditions resulting in removal will not be

       remedied, is sufficient evidence to show that termination is in the child’s best

       interests. In re J.S., 906 N.E.2d at 236.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 18 of 19
[14]   Both FCM Howson and CASA Brown testified that they believed adoption was

       in the Children’s best interests. While coupling that testimony with our

       previous conclusion that there was sufficient evidence to show that the

       conditions of removal would not be remedied is sufficient to support the

       juvenile court’s termination of Parents’ parental rights, it is not as though this

       testimony is unsupported by other evidence in the record.


[15]   In addition to their inability to address their substance abuse issues, Parents

       failed to successfully complete any of the DCS-recommended or court-ordered

       services. Parents also spent time incarcerated throughout this matter. Moreover,

       Parents failed to consistently attend visitation with the Children, with Father’s

       last visitation occurring in October of 2017 and Mother’s in February of 2018.

       Parents also failed to attend the factfinding hearing regarding the termination of

       their parental rights. Last, the Children no longer have a connection with

       Parents given the lapse of time since they last saw each other and are doing well

       in their foster placements. Considering the totality of the evidence, Parents have

       failed to establish that the juvenile court’s determination that termination was

       in the Children’s best interests was clearly erroneous.

[16]   The juvenile court’s judgment is affirmed.



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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1895| April 22, 2020   Page 19 of 19
