MEMORANDUM DECISION                                                       FILED
                                                                      Jan 23 2019, 9:03 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                              CLERK
precedent or cited before any court except for the                    Indiana Supreme Court
                                                                         Court of Appeals
purpose of establishing the defense of res judicata,                       and Tax Court

collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Mark A. Delgado                                           Curtis T. Hill, Jr.
Monticello, Indiana                                       Attorney General of Indiana
Benjamin J. Church                                        Abigail R. Recker
Monticello, Indiana                                       Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          January 23, 2019
Termination of the Parent-Child                           Court of Appeals Cause No.
Relationship of K.C. (Minor                               18A-JT-1755
Child),
                                                          Appeal from the White
and                                                       Circuit Court
B.C. (Mother) and B.C. (Father),                          The Honorable Robert W.
Appellants-Respondents,                                   Thacker, Judge
        v.                                                Trial Court Cause No.
                                                          91C01-1712-JT-28
The Indiana Department of Child
Services,
Appellee-Petitioner.




Riley, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019              Page 1 of 21
                                STATEMENT OF THE CASE
[1]   Appellants-Respondents, B.C. (Mother) and B.C. (Father), (collectively,

      Parents), appeal from the trial court’s order terminating their parental rights to

      their child, K.C. (Child).


[2]   We affirm.


                                                    ISSUE
[3]   Parents present four issues on appeal, which we consolidate and restate as:

      Whether the trial court’s findings and conclusions support the judgment

      terminating their rights to Child.


                      FACTS AND PROCEDURAL HISTORY
[4]   Child was born on February 8, 2016, to Mother and Father, for whom paternity

      was established by affidavit and a court proceeding. On August 6, 2016, the

      Department of Child Services (DCS) received a report that Parents were

      engaging in domestic violence in Child’s presence, Parents were using illegal

      controlled substances while caring for Child, and Parents were about to be

      evicted from their home. A family case manager (FCM) visited the home and

      interviewed Mother, who admitted to ingesting methamphetamine and

      confirmed that they were about to be evicted for non-payment of rent. Mother

      subsequently tested positive for methamphetamine. A hair-follicle test was

      performed on Child. The cut-off level for testing was 500pg/mg; Child tested at

      2,741 pg/mg. Child was removed from Parents’ care and placed with his

      paternal aunt and uncle.
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 2 of 21
[5]   On August 12, 2016, DCS filed a petition alleging that Child was a child in

      need of services (CHINS). On August 25, 2016, Parents admitted to the

      allegations in the petition. On October 4, 2016, the CHINS court entered its

      dispositional decree ordering Parents to refrain from possessing and consuming

      illegal controlled substances, complete a substance abuse assessment, follow

      and complete substance abuse treatment recommendations, refrain from acts of

      domestic violence and other criminal activity, maintain stable housing, and

      maintain employment.


[6]   Beginning in September 2016, Parents were provided a number of services,

      including substance-abuse treatment, home-based case management to address

      housing and employment issues, individual therapy, and couples therapy.

      From September to December 2016, Parents completed a substance-abuse

      assessment, participated in intensive outpatient treatment, and had negative

      drugs screens. Parents engaged in supervised visitation and their other services.

      Father was employed. On December 22, 2016, in light of this progress, DCS

      initiated a trial home visit for Child. On February 6, 2017, Parents tested

      positive for marijuana. On February 8, 2017, Parents were interviewed by DCS

      and admitted to using heroin. Child was removed from Parents’ care and

      placed again with his paternal aunt and uncle, where Child has resided since.

      After Child’s removal, Father binged on drugs for two weeks and lost his

      employment. Mother continued to engage in services. During the DCS

      reporting period from December 2016 to April 11, 2017, there were two

      domestic violence incidents between Parents.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 3 of 21
[7]   From April 11, 2017, to June 30, 2017, Mother maintained employment and

      engaged in visitation and other services. Mother was referred to intensive

      outpatient therapy, which she did not complete. Mother did not have a

      permanent address and stayed with a series of friends, some of whom were

      known to DCS to have substance-abuse issues. On June 6, 2017, just before

      Child was to arrive for a scheduled visit, Father physically assaulted Mother by

      placing her in a headlock and ripping out one of her earrings. Father was

      arrested following this incident. As a result of a separate incident in June,

      Father was arrested on a second occasion and charged with criminal

      recklessness, resisting law enforcement, and battery. Father was evicted from

      his home. As a result of these events, DCS changed Child’s permanency plan

      from reunification to add a concurrent plan of adoption by paternal aunt and

      uncle.


[8]   From June 30, 2017, to September 29, 2017, Father was incarcerated. He

      completed an anger-management program while in jail. Mother continued to

      reside with friends. Mother was terminated from her retail employer when she

      was charged with theft from the store. During this reporting period, Mother

      tested positive for marijuana and methamphetamine.


[9]   From September 29, 2017, to January 9, 2018, Father was released from jail

      and was referred to intensive outpatient therapy, home-based case

      management, and supervised visitation with Child. On November 27, 2017,

      Father’s probation was revoked due to his testing positive for

      methamphetamine, morphine, and marijuana. Although Mother participated

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 4 of 21
       in supervised visitation and home-based case management, she was not

       employed, had no stable address, and tested positive for methamphetamine on

       December 28, 2017. During this period, Parents continued to engage in verbal

       altercations. On December 28, 2017, DCS filed a petition seeking the

       involuntary termination of Mother and Father’s parental rights (TPR).


[10]   Between January 9, 2018, and May 2018, Father was incarcerated on work

       release and did not participate in services. Mother continued to participate in

       visitation with Child and home-based case management but was arrested in

       February and charged with methamphetamine possession, marijuana

       possession, and driving without a license. On April 12, 2018, Mother tested

       positive for methamphetamine. Parents continued to engage in verbal

       altercations.


[11]   On May 3, 2018, the trial court held a hearing on the TPR petition. By that

       time Child was twenty-seven months old and had been placed with his aunt and

       uncle for twenty months. Parents visited with Child for two hours each week.

       Mother was not participating in substance-abuse treatment and admitted that

       she did not know how to overcome her addiction to methamphetamine.

       Mother blamed her continued drug use on being around the wrong kind of

       people. Mother was not employed but hoped to procure summer cleaning

       work. Mother was living with a friend and acknowledged that she could not

       maintain housing on her own. Mother had pending criminal charges related to

       her theft from her previous employer. According to Mother, her life with

       Father and Child was going well until DCS removed Child from her care.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 5 of 21
[12]   At the time of the TPR hearing, Father expected to complete his sentence on

       work release by the end of May 2018. Father was drug tested every two weeks

       while on work release and was experiencing his longest period of sobriety.

       Father expected to live with his father after being released from work release.

       Father was employed earning $9.00 per hour. Father related an incident that

       had happened just the day before the hearing wherein Mother had come to his

       place of work with someone else and followed him after he left work to return

       to the jail, which concerned him.


[13]   Parents’ FCM noted that even though they knew what they had to do to

       succeed, Parents’ maturity level had decreased through the case and that they

       had displayed an inability to co-parent effectively. The FCM opined that,

       despite their initial success with services, Parents had made no progress in their

       case, that the substance abuse, domestic violence, and housing instability that

       had resulted in Child’s removal still existed and were unlikely to change, and

       that it was in Child’s best interests that Parents’ rights be terminated. Parents’

       home-based therapist testified that they initially did well with couple’s therapy

       but had regressed since February 2017. The therapist opined that Parents were

       unable to follow through with their stated desire to make progress and that they

       never achieved the ability to care for themselves or Child. A second case

       worker who had worked with Parents from March 2017 to the time of the TPR

       hearing testified that she had worked with Parents on the issues of employment,

       housing, and sobriety and that, although Parents attended meetings, they made

       no progress on their issues and did not use resources between meetings. Child’s


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 6 of 21
       guardian ad litem (GAL) reported that Child had bonded to his aunt and uncle.

       The GAL expressed concern and that Child’s sense of safety and security would

       be significantly negatively impacted if he were placed again with Parents and

       then removed again if the placement failed.


[14]   On July 12, 2018, the trial court entered its order terminating Parents’ rights to

       Child. The trial court entered eighty-two (82) detailed findings supporting its

       conclusion that the conditions which resulted in Child’s removal and continued

       placement outside of the home will not be remedied, including the following:


               1. The child is approximately 27 months old and has been placed
               in the care of his paternal uncle and aunt . . . through the entirety
               of the underlying CHINS case, and has been out of the care and
               custody of his parents for 20 months. The child has done well
               with placement, and is bonded with placement, and placement is
               willing and wanting to adopt the child as he has been in their
               home for the majority of his life.

               ***

               8. [The FCM] testified that the reasons for removal will not be
               remedied because of the continued drugs use by the parents, the
               instability of Mother due to the lack of employment or housing,
               the domestic violence between the parents, and the repeated
               incarceration of Father and Mother.

               9. [The FCM] testified that the parents presented more maturely
               at the beginning of her involvement but have presented less
               maturely currently. Their behaviors are not appropriate, and
               they do not present able [sic] to co-parent for the best interest of
               the child.

               10. [The FCM] testified that the parent’s [sic] had a clear
               understanding of what they needed to accomplish and when in
               order to reunify but were unable to follow through and this lack
               of motivation and consistency is a concern for returning the child
               to the care and custody of the parents.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 7 of 21
        ***

        14. [The FCM] testified that the parents have struggled with
        illegal drug use, a [sic] unstable and unhealthy relationship, and
        housing and employment instability through the course of the
        case.

        15. [The FCM] testified that after the [trial home visit] was
        terminated there was never another time when DCS considered
        returning the child to the home of either parent.

        ***

        21. [The home-based case manager] testified that a major
        roadblock for progress was a lack of follow through and
        motivation. (State’s Group Exhibit F).

        ***

        32. [Parents’ therapist] testified that the parents have not made
        any significant progress.

        ***

        41. Mother has not had stable housing or stable employment
        through the entire pendency of the companion CHINS case.

        42. [The case worker] testified that there is not any tangible
        progress towards goals.

        43. Father was not compliant with services throughout the case
        when he was not incarcerated. He was inconsistent with
        meeting, and showed insignificant progress towards goals.
        (State’s Exhibit G).

        ***

        48. Mother and Father are inconsistent with home base [sic] case
        management and have not made individual progress toward
        goals established in this service. (State’s Group Exhibit C).

        ***




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 8 of 21
               63. Father testified that he does not have a plan to ensure
               sobriety nor does the Father have a relapse prevention plan other
               than just not using illegal drugs.

               ***

               72. [The GAL] testified that throughout the case there has been
               [a] repeated pattern of drug use and that it is unclear whether
               there will be a change in that pattern that has not changed in the
               entire case.

               ***

               75. [The GAL] testified that while the parents care about the
               child, they have been unable to pull it together throughout the
               entire case to be able to take care of the child.

               ***

               78. [The GAL] testified that the child needed permanency and
               stability.

       (Mother’s App. Vol. II, pp. 8-17).

[15]   The trial court made the following findings supporting its conclusion that

       termination of Parents’ rights to Child was in Child’s best interests:


               1. [The FCM] testified that the termination was in the child’s
               best interest in that Mother and Father continue to struggle with
               substance use, have not successfully completed treatment, are
               inconsistent with services.

               2. [The FCM] testified that the termination was in the child’s
               best interest because Mother continues to struggle with housing
               instability and employment instability, and the child needs
               stability and permanency that cannot be provided by the parents.

               3. [The FCM] testified that termination is in the child’s best
               interested [sic] because the parent’s [sic] continue to struggle with
               domestic violence and an unhealthy relationship that has
               negatively impacted their ability to parent.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 9 of 21
               4. [The GAL] testified that the child needs permanency due to
               his young age, and due to the risk of an attachment disorder.

               5. [The FCM] testified that the child has been removed from the
               parents 20 months out of his 27 month life and is well bonded
               with [his] placement.

               6. The child has lived in placement care for his entire life, and
               has a bond with paternal uncle and aunt.

               7. [The FCM] testified that the same concerns that resulted in
               the child's removal remain, and the parents are unable to provide
               a stable safe home environment free from abuse and neglect.


       (Mother’s App. Vol. II, pp. 18-19).


[16]   Parents now appeal. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                              I. Standard of Review

[17]   It is well-settled that when reviewing the evidence supporting the termination of

       parental rights we neither reweigh the evidence nor determine the credibility of

       witnesses. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). In addition, we consider

       only the evidence that supports the judgment and the reasonable inferences to

       be drawn from that evidence. Id. “We confine our review to two steps:

       whether the evidence clearly and convincingly supports the findings, and then

       whether the findings clearly and convincingly support the judgment.” Id. We

       must give due regard to the trial court’s opportunity to judge the credibility of

       witnesses firsthand, and we do not set aside the trial court’s findings or

       judgment unless it is clearly erroneous. Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 10 of 21
                                      II. Termination of Parents’ Rights

[18]   “[O]ne of the most valued relationships in our culture” is that between a parent

       and his or her child. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied.

       Indeed, “[a] parent’s interest in the care, custody, and control of his or her

       children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.

       (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Accordingly, the

       Fourteenth Amendment to the United States Constitution safeguards “the

       traditional right of parents to establish a home and raise their children.” Id.

       Nevertheless, parental interests are not absolute; rather, termination of parental

       rights is appropriate when parents are unable or unwilling to meet their parental

       responsibilities. In re A.B., 887 N.E.2d 158, 164 (Ind. Ct. App. 2008).


[19]   Termination of parental rights is an extreme sanction that is intended as a “last

       resort” and is available only when all other reasonable efforts have failed. C.A.

       v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 91 (Ind. Ct. App. 2014). As such,

       before a termination of parental rights is merited, the State is required to prove

       a host of facts by clear and convincing evidence, the most relevant for our

       purposes being that there is a reasonable probability that the conditions which

       resulted in the child’s removal and continued placement outside the home will

       not be remedied by the parents and that termination is in the best interests of

       the child. Ind. Code §§ 31-35-2-4(b)(2)(B)(i), (C); 31-37-14-2. We address each

       of those factors in turn.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 11 of 21
                         A. Reasonable Probability Conditions Will Not Be Remedied

[20]   When reviewing a trial court’s determination that the conditions that resulted in

       the child’s removal will not be remedied, we engage in a two-step analysis.

       E.M., 4 N.E.3d at 642-43. First, we must identify the conditions that led to

       removal; second, we determine whether there is a reasonable probability that

       those conditions will not be remedied. Id. at 643. When engaging in the

       second step of this analysis, a trial court must judge a parent’s fitness as of the

       time of the TPR proceeding, taking into account evidence of changed

       conditions, balancing any recent improvements against habitual patterns of

       conduct to determine whether there is a substantial probability of future neglect

       or deprivation. Id. This delicate balance is entrusted to the trial court, and a

       trial court acts within its discretion when it weighs a parent’s prior history more

       heavily than efforts made only shortly before termination. Id. “Requiring trial

       courts to give due regard to changed conditions does not preclude them from

       finding that parents’ past behavior is the best predictor of their future behavior.”

       Id.


[21]   Here, only Mother argues that the trial court’s findings and conclusions on this

       factor were unsupported, and so we direct our analysis on this issue only to the

       findings and conclusions pertaining to her. Child was initially removed from

       Mother’s care due to her drug use, domestic violence between her and Father,

       and housing instability. Evidence in the record showed that Mother tested

       positive for methamphetamine when Child was removed and that, despite some

       initial success and some continued engagement in services, she continued to test


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 12 of 21
       positive for methamphetamine and marijuana throughout the pendency of the

       CHINS proceedings and this case. Indeed, even after DCS filed its TPR

       petition, Mother was arrested in February of 2018 for methamphetamine and

       marijuana possession, and she last tested positive for methamphetamine in

       April 2018, just weeks before the scheduled TPR hearing. The trial court

       credited testimony by the FCM, Mother’s therapist, and the GAL that Mother

       had failed to make progress on her substance abuse and that it was unclear

       whether there would be a change in that pattern. We conclude that the

       evidence supported the trial court’s findings and that its findings supported its

       conclusion that there was a reasonable probability that Mother’s substance

       abuse would not be remedied.


[22]   Regarding the incidents of domestic violence between Mother and Father, the

       evidence showed that during the pendency of the CHINS case, a serious

       incident occurred on June 6, 2017, when Father battered Mother just before

       Child was to arrive for a visit, resulting in his arrest. Mother continued her

       relationship with Father during his periods of incarceration. Even after

       receiving couples and individual therapy, Mother and Father continued to

       engage in verbal disputes. Father related at the TPR hearing that the day before

       the hearing Mother had come to his place of work and followed him when he

       left, which concerned him. The trial court credited testimony by the FCM,

       Mother’s therapist, and the GAL that she had failed to make progress on goals,

       that Mother’s maturity level had regressed through the case, and that continued

       incidents of domestic violence would not be remedied. We conclude that the


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 13 of 21
       trial court’s findings were supported by the evidence and that its findings

       supported its conclusion that there was a reasonable probability that the

       domestic violence between Parents would not be remedied.


[23]   As to Mother’s housing instability, the evidence showed that throughout the

       pendency of the CHINS and the TPR proceedings, when she was not

       incarcerated, Mother had no fixed address and resided with a series of friends,

       some of whom were known to DCS as having substance-abuse issues. Mother

       received assistance and training from her home-based case manager to address

       her housing instability, yet she made no progress in addressing this issue. At

       the time of the TPR hearing, Mother had been living with yet another friend for

       a month after being released from incarceration. In its findings, the trial court

       credited testimony by the FCM, the home-based case manager, and the case

       worker that Mother continued to struggle with housing, she had made no

       progress towards her goal of stable housing, and her housing instability would

       not be remedied. We conclude that these findings were supported by the

       evidence and that the trial court’s conclusion that there was a reasonable

       probability that Mother’s housing instability would not be remedied was

       supported by those findings.


[24]   Nevertheless, Mother argues that she had made progress in addressing her

       substance-abuse issues, she had made efforts to change, and she had removed

       herself from her relationship with Father. We find these arguments

       unpersuasive given our standard of review which compels us to only consider

       evidence that supports the trial court’s determinations and to refrain from

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 14 of 21
       reweighing the evidence. E.M., 4 N.E.3d at 642. In addition, we note that,

       particularly in regards to the domestic violence between Parents, it was within

       the trial court’s discretion to weight more heavily the historic pattern of

       violence between them in face of Mother’s claims at the TPR hearing that she

       had separated herself from Father and to determine that Parent’s past behavior

       was more indicative of their future behavior. Id. at 642-43.


[25]   Mother also likens her case to In re J.M., 908 N.E.2d 191, 194 (Ind. 2009),

       which we find to be factually distinguishable because the reason for removal in

       that case was the fact that both parents were incarcerated, not drug use,

       domestic violence, and housing instability. We find this comparison

       unpersuasive for the additional reason that in J.M., our supreme court reversed

       the decision of another panel of this court because it had declared the trial

       court’s determination clearly erroneous based on evidence which did not

       support the trial court’s determination, something which Mother now invites us

       to do. Id. at 193-95. Because the evidence supports the trial court’s findings

       which supports its conclusion that there was a reasonable probability that

       Mother’s substance abuse, domestic violence, and housing instability issues

       would not be remedied, we find that the trial court’s determination was not

       clearly erroneous. E.M., 4 N.E.3d at 642.


                                               B. Child’s Best Interests

[26]   Mother and Father challenge the trial court’s conclusion that termination of

       their parental rights was in Child’s best interests. Our supreme court has

       recently recognized that one of the most difficult aspects of a termination of

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 15 of 21
       parental rights determination is the issue of whether the termination is in the

       child’s best interest. Id. at 647 (noting that the question “necessarily places the

       children’s interest in preserving the family into conflict with their need for

       permanency”). The trial court’s determination that termination was in the

       child’s best interests requires it to look at the totality of the evidence of a

       particular case. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied. “In doing so, the trial court must subordinate the interests of the parents

       to those of the children involved.” Id.


[27]   Here, supporting its conclusion that termination was in Child’s best interests,

       the trial court found that Parents continued to struggle with substance abuse

       and an unhealth relationship that negatively impacted their ability to parent.

       The trial court credited the FCM’s testimony that it was in Child’s best interests

       to terminate Parents’ rights because Mother continued to struggle with housing

       and employment stability and Child needed stability and permanency that

       Parents could not provide. The trial court also credited testimony by the FCM

       and the GAL that Child was at risk for attachment disorder due to his young

       age and that Child was well-bonded with paternal aunt and uncle, with whom

       Child had resided for twenty of the twenty-seven years of his life. It was within

       the trial court’s jurisdiction to weigh the competing interests in this case, and,

       given the trial court’s findings and our deference to the trial court’s ability to

       weigh the evidence firsthand in such matters, we cannot conclude that its

       determination that termination was in Child’s best interests was clearly

       erroneous. E.M., 4 N.E.3d at 642.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 16 of 21
[28]   Neither Mother nor Father appear to challenge the evidence supporting the trial

       court’s findings on this issue. Rather, Father argues that, because Child was in

       a stable placement with relatives and he had made positive strides to address his

       drug addiction, he should have been given more time to show that he could

       effectively parent Child. Father likens his case to In re R.S., 56 N.E.3d 625 (Ind.

       2017), in which our supreme court reversed a trial court’s order terminating a

       father’s parental rights, finding that the trial court’s determination was clearly

       erroneous given the trial court’s own findings that father kept in contact with

       child during his lengthy incarceration, completed several programs to better

       himself while incarcerated, completed fifty-two weeks of domestic violence

       counseling as a condition of his probation, and that it would be best for child

       and father to continue visitation. Id. at 629. The supreme court also found it

       significant that the child, who was ten-years-old at the time of the TPR, had

       been placed with a relative for years, and, thus, prolonging child’s adoption was

       unlikely to have an effect on the child. Id. at 630.


[29]   We do not find Father’s comparison of his case to R.S. to be apt. Father’s

       recent efforts and accomplishments towards his sobriety are to be commended.

       However, there was no evidence that Father took significant measures to better

       himself during his periods of incarceration, made any long-term treatment

       efforts, or that he shared as close a bond with Child as the father did with R.S.

       In addition, there was no recommendation or conclusion here by the trial court

       that Father continue to visit with Child. R.S. was also much older than Child,

       and there was no evidence that R.S. was at risk for attachment disorder as the


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 17 of 21
       trial court found Child was in this case. Thus, we do not conclude that the fact

       that Child was placed with relatives made the trial court’s best interests

       determination clearly erroneous.


[30]   Mother develops her argument as to Child’s best interests through an extended

       comparison of her circumstances to those of In re G.Y., 904 N.E.2d 1257 (Ind.

       2009), in which our supreme court reversed a trial court’s TPR determination

       because none of the four findings the trial court relied upon to conclude

       termination was in child’s best interests was supported by the evidence. In

       G.Y., mother was arrested and incarcerated for dealing cocaine, an offense she

       had committed a year before her child was born. Id. at 1258. There was no

       evidence that she had been involved in criminal activity during the twenty

       months child was in her care after the offense or that she had been an unfit

       parent in any other way. Id. Before being incarcerated, mother made multiple

       unsuccessful attempts to place child with a relative before DCS removed child

       from her care. Id.


[31]   The trial court eventually terminated mother’s parental rights based on its

       conclusions that mother was unavailable to parent due to her likelihood of

       reoffending, providing mother additional time to be released from jail and to try

       to remedy removal issues would unnecessarily delay permanency for the child,

       child had a closer bond with his foster parents than with mother, and child had

       a general need for permanency and stability. Id. at 1262-66. In finding that the

       trial court’s conclusion that child was better bonded with his foster family than

       his mother was clearly erroneous, the court found that mother had exercised

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 18 of 21
       regular, positive visitation once a month with her child while incarcerated. Id.

       at 1264. The court also found it significant that mother had made strenuous

       efforts from the moment of her arrest and throughout her incarceration to place

       her child with a family member. Id. at 1265.


[32]   As to the trial court’s finding that G.Y. was in general need of permanency and

       stability, the court held that this finding was clearly erroneous because,

       although the GAL recommended termination due to child’s need for

       permanency and stability, the GAL also opined that it was in G.Y.’s best

       interests to continue contact with mother in the future. Id. The court also

       found it significant in weighing G.Y.’s interest in permanency through adoption

       against his interest in remaining in foster care pending mother’s release that

       mother had completed an eight-week drug rehabilitation program while

       incarcerated, refrained from using cocaine for a number of years, completed a

       fifteen-week parenting class, was actively participating in a program to improve

       her employment prospects after release, was working towards an associate’s

       degree, and had demonstrated a willingness to continue in parenting and

       improvement classes after her release. Id. at 1262, 1265.


[33]   While it is almost always possible to distinguish the facts of one TPR case from

       another given the highly fact-sensitive nature of the inquires involved, even with

       broadest of approaches we find G.Y. to be inapposite to the present case.

       Because the trial court made no findings regarding Mother’s likelihood of re-

       offending and Mother was not awaiting release from incarceration, the first two

       factors analyzed by the court in G.Y. do not apply here. However, even if those

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 19 of 21
       factors were applicable, Mother’s argument on those points largely consists in

       directing our attention to facts that do not support the trial court’s judgment,

       such as her hope to procure part-time cleaning work and her stated desire to

       remove herself from Father. This argument is unavailing given our standard of

       review which precludes us from considering such evidence. In re E.M., 4

       N.E.3d at 642.


[34]   The trial court did find that Child was well-bonded with his pre-adoptive

       placement, but it made no finding that Child was better bonded with his

       placement than with Mother akin to the finding at issue in G.Y. However, even

       if it had made such an express finding, unlike the circumstances of G.Y., there

       was nothing in the record beyond Mother’s regular visitation that renders the

       trial court’s determination here clearly erroneous. Mother also argues that she

       “was never given a substantial opportunity to show that she could provide for

       the minor child and be a full-time parent after removal” which she maintains

       indicated that DCS had pre-determined that foster care and adoption was better

       for Child because his aunt and uncle were more financially secure than she.

       However, Mother had the opportunity to show her parenting ability when

       Child was returned to her home for the trial home visit in December of 2016.

       Child was removed in February of 2017 when Mother and Father used heroin

       and marijuana while Child was in their care.


[35]   As to the trial court’s finding that Child was in need of permanency and

       stability, unlike the facts of G.Y., there was no recommendation by the GAL or

       anyone else in this case that visitation or contact be maintained by Parents with

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1755 | January 23, 2019   Page 20 of 21
       Child. In addition, Mother did not make any progress in her case comparable

       to the sustained and significant efforts displayed by G.Y.’s mother. In light of

       the totality of the findings supporting the trial court’s conclusion that

       termination of Parents’ rights was in Child’s best interest, we conclude that its

       order terminating their rights to Child was not clearly erroneous. E.M., 4

       N.E.3d at 642.


                                             CONCLUSION
[36]   Based on the foregoing, we conclude that the evidence supported the trial

       court’s findings which supported its conclusions that there was a reasonable

       probability that the conditions which merited removal would not be remedied

       and that it was in Child’s best interests to terminate Parents’ rights to Child.


[37]   Affirmed.


[38]   Kirsch, J. and Robb, J. concur




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