MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                     FILED
court except for the purpose of establishing                    Mar 27 2017, 6:15 am

the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
estoppel, or the law of the case.                                   Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Julianne L. Fox                                          Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        March 27, 2017
Child Relationship of:                                   Court of Appeals Case No.
                                                         82A05-1610-JT-2458
C.D. (Minor Child)
                                                         Appeal from the Vanderburgh
And                                                      Superior Court
M.D. (Mother),                                           The Honorable Brett J. Niemeier,
Appellant-Respondent,                                    Judge
                                                         The Honorable Renee A.
        v.                                               Ferguson, Magistrate
                                                         Trial Court Cause No.
The Indiana Department of                                82D04-1604-JT-647
Child Services,



Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017    Page 1 of 12
      Appellee-Petitioner




      Altice, Judge.


                                               Case Summary


[1]   M.D. (Mother) appeals following the involuntary termination of her parental

      rights to C.D. (Child). On appeal, she challenges the sufficiency of the evidence

      supporting termination.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Mother gave birth to Child on May 26, 2014. On or about June 6, 2014, the

      Indiana Department of Child Services (DCS) became involved with Mother

      after receiving a report that Child had tested positive for THC at birth. Child

      also tested positive for methadone. At that time, Mother admitted she had an

      opiate addiction and that she had been prescribed methadone as part of her

      treatment through the Evansville Treatment Center. Mother had been treated

      with methadone during her entire pregnancy.


      Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 2 of 12
[4]   Hilary Bemis, a Family Case Manager with DCS (FCM Bemis), was unable to

      get in touch with Mother from June 10, 2014 to June 26, 2014. On June 27,

      2014, Mother tested positive for methamphetamine. Child was removed from

      Mother’s care and placed with his maternal grandparents (Grandparents). On

      July 14, 2014, DCS filed its child in need of services (CHINS) petition alleging,

      among other things, that Child’s meconium screen was positive for THC and

      that Mother tested positive for methamphetamine. On September 16, 2014,

      Mother stipulated to the CHINS allegations and the court adjudicated Child a

      CHINS. The parental participation plan required Mother to obtain a substance-

      abuse evaluation and follow any treatment recommendations, submit to

      random drug screens, and participate in supervised visitation with Child.


[5]   According to FCM Bemis, Mother initially cooperated with DCS and had

      negative drug screens. Mother’s participation in services was going so well that

      DCS arranged for a trial home visit in October 2014. At that time, Mother

      resided in Grandparents’ home where Child had been placed. In December

      2014, Mother was evaluated and provided services for substance abuse and

      kleptomania through Counseling for Change. In February 2015, Mother was

      arrested for theft. Child was removed from Mother’s care and again placed

      with Grandparents. A week later, DCS gave Mother another chance by

      returning Child to her care.


[6]   FCM Bemis noted that from February to mid-April 2015, Mother was doing

      “fairly well.” Transcript at 12. Mother and Child continued to live with

      Grandparents. In April, Mother became less compliant with services in that she

      Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 3 of 12
      was missing drug screens and leaving with Child for days at a time without

      informing DCS or Grandparents as to her whereabouts. Conflict between

      Mother and Grandparents led to arguments in front of Child. One such

      argument escalated to the point where Mother engaged in a physical altercation

      with her mother, who was holding Child at the time. Around this same time,

      there was an incident where someone reported that Mother was in public under

      the influence while Child was in her care. Based on the report, police were

      dispatched to look for Mother and Child. When Mother and Child eventually

      returned to Grandparents’ home, Mother was impaired.


[7]   On May 4, 2015, Grandparents informed DCS that they were no longer

      comfortable with Mother staying in their home. DCS again removed Child

      from Mother’s care and placed him with Grandparents and required that

      Mother move out of Grandparents’ home. Three days later, Mother refused to

      comply with a DCS order that she submit to a hair screen. Over the next

      couple of weeks, Mother consistently visited Child. By mid-June, however,

      Mother stopped visiting Child altogether. Soon thereafter, DCS stopped

      providing visitation services.


[8]   When Mother was not living with Grandparents, she was living with her

      boyfriend and helping to care for his father. On June 18, 2015, Mother went to

      an emergency intervention location and reported that she had fled from her

      boyfriend because he was “beating her and locking her in the basement and

      giving her drugs.” Id. at 15. A police officer interacted with Mother and noted

      that she appeared to be under the influence in that she was slurring her words

      Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 4 of 12
       and was very incoherent. The violent history between Mother and her

       boyfriend is supported by the multiple police runs to the home in response to

       reports of domestic disputes and drug use. DCS offered Mother domestic

       violence services or “any help at that point,” but Mother refused. Id.


[9]    In August 2015, Mother was involuntarily committed to the Western State

       Hospital in Kentucky because she was suffering from a drug-induced psychosis.

       A hearing to modify the dispositional decree was held in September 2015. At

       that hearing, Mother appeared to be impaired—“she was slurring her words,

       could not form complete sentences and walked off after spilling the contents of

       her purse on the floor from her lap, seemingly oblivious to the situation.”

       Appellant’s Appendix at 5. Mother was again ordered to submit to a hair screen,

       but she refused.


[10]   In mid-September, Mother was arrested on two separate occasions—one for

       resisting law enforcement and one for failure to appear. Mother remained in

       the Vanderburgh County jail from September 23, 2015 until December 20,

       2015. Mother contacted FCM Bemis upon her release, and FCM Bemis set up

       drug screens for Mother. Mother did not comply with the drug screens and all

       contact between DCS and Mother ceased shortly thereafter. Mother was

       arrested again in February 2016 on a petition to revoke her probation in a

       criminal case out of Posey County. Mother remained incarcerated until May

       28, 2016. While incarcerated, FCM Bemis met with Mother on two occasions

       and both times Mother admitted that she could not take care of Child. In June

       2016, after her release, Mother voluntarily checked herself into another

       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 5 of 12
       residential treatment program that was to last anywhere from nine months to

       two years. Mother has not seen Child since June 2015.


[11]   On April 18, 2016, while Mother was incarcerated, DCS filed a petition to

       terminate her parental rights. The court held a fact-finding hearing on July 20,

       2016. On September 27, 2016, the court entered its order terminating Mother’s

       parental rights. Mother now appeals. Additional facts will be provided as

       necessary.


                                           Discussion & Decision


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

       evidence or judge the credibility of the witnesses. 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 most favorable to the judgment. Id. In deference to

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

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

       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[13]   The trial court entered findings in its order terminating parental rights. When

       the court enters specific findings of fact and conclusions thereon, we apply a

       two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children, 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

       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 6 of 12
       contains no facts to support them either directly or by inference.” Quillen v.

       Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous only if

       the findings do not support the court’s conclusions or the conclusions do not

       support the judgment thereon. Id.


[14]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[15]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:

               (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.



       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 7 of 12
                        (ii) There is a reasonable probability that the continuation
                        of the parent-child relationship poses a threat to the
                        wellbeing of the child.


                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child and there is a

       satisfactory plan for the child’s care and treatment. I.C. § 31-35-2-4(b)(2)(C),

       (D).


[16]   Mother argues that the evidence did not establish that there is a reasonable

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

       remedied. In making this determination, “the trial court must judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and 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.’” In re E.M., 4 N.E.3d

       636, 643 (Ind. 2014) (quoting K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1231 (Ind. 2013)). Pursuant to this rule, “trial courts have properly

       considered 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.” A.F. v. Marion Cnty. Office of Family & Children, 762

       N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 8 of 12
[17]   In its order terminating Mother’s parental rights, the trial court made the

       following findings:


               45. Despite [Mother’s] recent efforts at substance abuse
               treatment it is unlikely that [she] will be successful in resolving
               her substance abuse issues.


               46. [Mother] has not been compliant with the orders of the
               CHINS court or the criminal courts. [Mother] has utterly failed
               to comply with random drug screens.


               47. [Mother] has not seen her child, other than some phone calls
               after she was recently released from jail, since June of 2015.


               48. The criminal court as well as the CHINS court has
               repeatedly given [Mother] opportunities to remedy her substance
               abuse and criminal issues. [Mother] will accept treatment at
               times when she is in trouble. But despite entering treatment, over
               and over again, [Mother’s] substance abuse and criminal issues
               continue.


               49. [Mother] has shown a long term pattern of continued
               substance abuse and failed treatment.


               50. [Mother’s] long term and unresolved substance abuse issues
               have repeatedly placed her in dangerous situations and have
               severely impacted her ability to provide a safe stable and secure
               environment for the Child.


       Appellant’s Appendix at 6-7.


[18]   Mother does not challenge any of the court’s findings. Rather, Mother urges us

       to consider that after she was released from incarceration, she voluntarily
       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 9 of 12
       sought treatment at a residential treatment facility. Mother also notes that she

       has cut ties with the boyfriend that caused concerns for her caseworker and

       emphasizes that in the past, she was able to hold steady employment. Mother

       describes herself as “stable and clean” at the time of the termination hearing.

       Appellant’s Brief at 9.


[19]   Contrary to Mother’s argument, her status at the time of the termination

       hearing is not the only relevant inquiry. As noted above, a court must balance a

       parent’s recent improvements against “habitual pattern[s] of conduct” in

       deciding whether there is a reasonable probability that the conditions that

       resulted in the child’s removal will not be remedied. E.M., 4 N.E.3d at 643.

       Here, the trial court’s undisputed findings are amply supported by the record

       and demonstrate that Mother has a history of substance abuse and criminal

       activity and that prior attempts to address her substance abuse and kleptomania

       have proven unsuccessful. Mother’s argument that her status at the time of the

       termination hearing should be afforded more weight than her history of failed

       attempts to get her life under control is simply a request that this court reweigh

       the evidence, a task that we will not undertake on appeal. Mother has not

       established that the trial court’s conclusion that there is a reasonable probability

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

       clearly erroneous.


[20]   Mother also challenges the court’s conclusion that termination and the

       permanency plan are in Child’s best interests. Mother first asserts that because

       the permanency plan is for her sister to adopt Child, it is likely that she will

       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 10 of 12
       continue to have some kind of relationship with Child. In such case, Mother

       argues that delaying termination until she completes her inpatient treatment

       would not harm or disadvantage Child. In other words, Mother asserts that

       Child’s best interests would be served through a guardianship until she

       completes her substance-abuse treatment.


[21]   The court made the following findings concerning Mother’s request in this

       regard:

               51. [Mother] urges the court to consider a guardianship rather
               than a termination, but the extent of [Mother’s] substance abuse
               and criminal issues along with the fighting that goes on between
               [Mother] and the family weighs strongly against a guardianship.


               52. [FCM Bemis], and the Court Appointed Special Advocate
               (“CASA”) testified that it is in [Child’s] best interest that
               [Mother’s] parental right be terminated.


               53. [FCM] Bemis and CASA also recommended that the
               permanency plan of adoption was the best permanency plan for
               [Child].


       Appellant’s Appendix at 7.


[22]   Even given Mother’s current status, FCM Bemis and the CASA testified that

       termination was in Child’s best interests in light of Mother’s history. The

       court’s findings demonstrate that the court ultimately agreed with FCM Bemis

       and the CASA that termination was in Child’s best interests. See In re J.S., 906

       N.E.2d 226, 236 (Ind. Ct. App. 2009) (“the recommendations of the case


       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 11 of 12
       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”). We will not second-guess the court’s determination.


[23]   Moreover, we note that there was evidence that Child has visited with and

       bonded with his aunt and uncle and that his aunt and uncle can provide an

       appropriate home for Child. Mother, on the other hand, has been in and out of

       jail and absent for much of Child’s young life.


[24]   In sum, the court’s findings of fact are supported by the evidence in the record

       and the court’s conclusions supporting termination of Mother’s parental rights

       are not clearly erroneous.


[25]   Judgment affirmed.


[26]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-JT-2458 | March 27, 2017   Page 12 of 12
