MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                      Apr 02 2020, 12:35 pm

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




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                    Curtis T. Hill, Jr.
Anderson, Indiana                                      Attorney General of Indiana
                                                       Jacob R. Kovalsky
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           April 2, 2020
of the Parent–Child Relationship                           Court of Appeals Case No.
of: T.R. and M.R. (Minor                                   19A-JT-2472
Children)                                                  Appeal from the Madison Circuit
and                                                        Court
                                                           The Hon. G. George Pancol,
A.R. (Mother),                                             Judge
Appellant-Respondent,                                      Trial Court Cause Nos.
                                                           48C02-1902-JT-49
        v.                                                 48C02-1902-JT-50

The Indiana Department of Child
Services,
Appellee-Petitioner.



Bradford, Chief Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020              Page 1 of 15
                                             Case Summary
[1]   T.R. and M.R. (collectively, “the Children”) were born in March of 2014 and

      March of 2017, respectively, to A.R. (“Mother”) and B.R. 1 (“Father”)

      (collectively, “Parents”). In August of 2017, while Father was incarcerated, the

      Indiana Department of Child Services (“DCS”) took custody of the Children

      because Mother had left them for several days with an acquaintance while she,

      it was suspected, used illegal drugs. As it happened, Father would remain

      incarcerated for the duration of this case. The juvenile court found the Children

      to be children in need of services (“CHINS”) and ordered Parents to participate

      in several services. At first, Mother exhibited partial compliance with some

      services, but this did not last.

[2]   In the end, Mother completed none of the ordered services, tested positive for

      illegal drugs several times, missed several scheduled drug screens, and caused

      visitation to be suspended permanently due to her non-compliance. In

      February of 2019, DCS filed a petition to terminate Parents’ rights to the

      Children (“the TPR Petition”). Following a hearing, the juvenile court granted

      DCS’s petition. Mother contends that the trial court erred in concluding that

      the conditions that led to the Children’s removal and continued placement in

      foster care would likely not be remedied and that termination of her parental

      rights is in the Children’s best interests. Because we disagree, we affirm.




      1
       Father does not participate in this appeal, and our treatment of the facts will therefore focus on Mother.
      We note, however, that Father was incarcerated throughout the pendency of this case below.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020                     Page 2 of 15
                             Facts and Procedural History
[3]   T.R. and M.R. were born on March 3, 2014, and March 18, 2017, respectively,

      to Parents. On August 22, 2017, DCS took custody of the Children and filed a

      petition alleging that they were CHINS because Mother had left them with an

      acquaintance she had only known for five weeks and had not returned for

      several days. It was thought that substance abuse was the cause of Mother’s

      neglect, and Father was incarcerated at the time. On November 14, 2017,

      Mother admitted the allegations in the CHINS petition, and the juvenile court

      found the Children to be CHINS.

[4]   On December 13, 2017, the juvenile court conducted a dispositional hearing,

      after which it ordered Mother to participate in supervised visitation, home-

      based casework, random drug screens, a substance-abuse assessment, parenting

      education, and home-based therapy. On January 31, 2018, the juvenile court

      held a review hearing, after which it found, inter alia, that (1) both parents had

      partially complied with the Children’s case plan; (2) Mother had begun

      individual counseling but had postponed her parenting assessment, family

      counseling, and psychological evaluation; (3) Mother had been meeting with

      her home-based caseworker; (4) Mother had completed her substance-abuse

      assessment but had only completed two out of fourteen random drug screens;

      (5) both Parents had enhanced their ability to fulfill their parenting

      responsibilities; (6) Mother had supervised visitation with the Children for a

      total of eight hours a week; and (7) both Parents had cooperated with DCS.

      The juvenile court set the matter for a permanency hearing on August 15, 2018.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 3 of 15
[5]   Mother’s partial compliance with court-ordered services was not to last. On

      August 15, 2018, the juvenile court held a permanency hearing, after which the

      juvenile court found, inter alia, that (1) Parents had not complied with the

      Children’s case plan; (2) Mother had not successfully completed or maintained

      compliance with any service, all of which had been cancelled by the providers;

      (3) Mother had tested positive for methamphetamine on a day she visited with

      the Children; (4) Mother had relapsed on illegal drugs and was incarcerated by

      the end of May of 2018; and (5) Mother’s visitation had been temporarily

      suspended due to no-shows and cancellations. On September 5, 2018, the

      juvenile court appointed Natalie Bogan as a court-appointed special advocate

      (“CASA Bogan”) to represent the Children’s interests. Visitation was also

      reinstated at some point in September of 2018.

[6]   On February 13, 2019, the juvenile court conducted a hearing, after which it

      found, inter alia, that (1) Parents had not complied with the case plan; (2) with

      the exception of a substance-abuse evaluation in 2017, Mother had failed to

      complete any services; (3) T.R.’s therapist Shayla Irby and CASA Bogan

      recommended cessation of visitation with Mother; (4) Parents had not

      enhanced their ability to fulfill their parental obligations; (5) Mother had been

      closed out of visitation due to positive drug screens, failing to confirm

      visitations, leaving early, no-shows, and visitation being traumatic for the

      Children; (6) Parents had not cooperated with DCS; and (7) the cause of

      removal had not been alleviated. The same day, the juvenile court approved a

      concurrent permanency plan for the Children of reunification and adoption.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 4 of 15
[7]   On February 19, 2019, DCS filed a TPR petition. On July 23, 2019, the

      juvenile court began a hearing on the TPR Petition, which hearing was

      continued on August 8 and 13, 2019. Irby testified that she had been working

      with T.R. since November of 2018 and that T.R. had exhibited aggressive

      behavior, resistance to her foster parents, and bed-wetting after visits from

      Mother. T.R.’s behaviors improved, however, when visitation was

      permanently suspended in December of 2018. Irby indicated her belief that

      further trauma could be avoided if Parents’ rights were terminated, and she

      agreed with that course of action.

[8]   Dwayne Wade, who supervised Mother’s visitation with the Children from

      September of 2018 until its cessation in December of 2018, testified that while

      Mother’s visitation was initially consistent, that consistency did not last.

      Visitation was cancelled October 17 and 24, 2018, due to Mother’s failure to

      confirm the appointments as directed. Moreover, Mother missed five straight

      visitations in late November to early December of 2018. Mother later claimed

      that she had been in a drug rehabilitation program at the time, but that turned

      out to be untrue, as she had only spent one day in the program. Mother

      attended two more visits in mid-December, but visitation was suspended

      permanently after she missed the next three scheduled visits. Wade testified

      that inconsistency in visitation could have a detrimental effect on children in

      general and that Mother’s inconsistency was particularly traumatic for T.R.

      When asked if termination of Parents’ parental rights was in the Children’s best




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 5 of 15
       interests, Wade replied that he felt like the Children would “be in a better place

       if they are in a more consistent atmosphere.” Tr. Vol. II p. 156.

[9]    CASA Bogan testified that the Children had bonded with their foster parents

       and were healthy, happy, and safe in their current placements. CASA Bogan

       opined that any change in status would jeopardize the Children’s stability and

       that it was in their best interests that Parents’ rights to them be terminated.

[10]   FCM Katherine Briney, who took over the Children’s cases in February of

       2018, testified that she was unable to confirm that Mother had attained stable

       housing or employment due to Mother’s poor communication. FCM Briney

       testified that Mother’s visitations had been cancelled in December of 2018, her

       parenting education had been cancelled in December of 2018, her home-based

       casework had been closed in October of 2018, and Mother had not been

       consistent in providing samples for drug screens. FCM Briney confirmed that

       Mother’s three latest drug screens had been positive for multiple illegal

       substances. Toxicologist Dr. Deborah Coy elaborated, testifying that Mother

       had tested positive for methamphetamine, 6-acetymorphine, and morphine on

       November 19, 2018; 6-acetymorphine, morphine, methadone, and fentanyl on

       December 12, 2018; and amphetamine, methamphetamine, morphine, fentanyl,

       norfentanyl, and tramadol on March 19, 2019.

[11]   FCM Briney opined that the reason for the removal of the Children and their

       continued placement outside the home had not been remedied because Parents

       had shown through their habitual patterns to be incapable of providing the

       stability that the Children need and deserve. FCM Briney also opined that

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 6 of 15
       continuation of the parent–child relationship posed a threat to the Children

       because they had established a sense of security and safety in their foster

       placement and it would be traumatic to return them to a situation that had not

       been proven to be stable and safe. FCM Briney testified that the current plan

       for the Children was adoption by their current foster parents, a placement in

       which she believed the Children to be doing “fantastic.” Tr. Vol. II p. 214.

       Finally, FCM Briney opined that it was in Children’s best interests that the

       parent–child relationship with Parents be terminated.

[12]   Brandon Dake, one of the Children’s foster fathers, testified that T.R. had

       behavioral problems when Mother still had visitation, including bed-wetting

       and tantrums, problems that worsened when Mother missed visits and

       improved when visitation was suspended. Dake and his husband had also

       addressed preexisting medical issues when they assumed care of the Children,

       i.e., the back of M.R.’s head had been flat, and T.R. had had a lazy eye and

       eighty-percent tooth decay; both of T.R.’s conditions had required corrective

       surgery. According to Dake, he and his husband had bonded with the

       Children, and they, in turn, had bonded with the other foster child in the

       couple’s care. Dake and his husband hoped to adopt the Children, and Dake

       opined that termination of Parents’ rights was in the Children’s best interests.

[13]   On August 13, 2019, Mother testified that she was currently incarcerated,

       facing charges of methamphetamine possession, possession of a controlled

       substance, false informing, marijuana possession, and paraphernalia possession.

       Mother also confirmed that she had prior convictions for three counts of theft


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 7 of 15
       and had pled guilty to Level 6 felony methamphetamine possession and Level 6

       felony unlawful possession of a syringe on April 16, 2019, convictions for

       which she had been given an aggregate suspended sentence of two years and

       168 days.

[14]   On September 23, 2019, the juvenile court granted DCS’s TPR petition in an

       order providing, in part, as follows:

               30.)     From the specific evidence presented through testimony
                        and documents, this Court categorically finds that in
                        regards to Mother:
                        a.       She has failed to achieve or sustain any period of
                                 sobriety since the opening of the CHINS
                                 proceedings.
                        b.       She failed her last 3 drugs screens submitted to, she
                                 was arrested in June for drug charges, and chose to
                                 remove herself from an inpatient rehabilitation
                                 facility after only one day.
                        c.       She was closed out of all other services due to non-
                                 compliance.
                        d.       The evidence showed that her inconsistent visits
                                 were harming the Children, in particular it caused
                                 [T.R.] to bed wet and have disruptive behavioral
                                 issues.
                        e.       She has not had contact with her Children since
                                 visitation was cancelled at the end of December
                                 2018 and she could possibly be ordered to serve the
                                 remaining suspended sentence from her previous
                                 arrests, causing contact with her children to be
                                 delayed further.
                        f.       The conditions resulting in the Children’s removal
                                 from the Mother’s home and care have not been
                                 remedied. The children were removed because of
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020     Page 8 of 15
                          Mother’s absence and substance abuse and they
                          remain out of her care because of the same.
        [….]
        32.)     The previous recitation of found facts and inferences, both
                 in specific detail and by general category, lead directly to
                 the factual finding, now made, that there is a reasonable
                 probability that the continuation of the parent–child
                 relationship between the Children and [P]arents pose a
                 threat to the well-being of the [C]hildren. The Court finds:
                 a.       Shayla Irby, [T.R.]’s therapist, stated the lasting of
                          effects of childhood trauma can follow the Children
                          through the rest of their lives.
                 b.       Children’s brains are still developing at their age
                          and trauma can hinder that development and cause
                          maladaptive behaviors such as: a higher
                          susceptibility to victimhood in the future, a potential
                          to be a perpetrator as an adult, a decreased ability to
                          bounce back from life’s struggles, and a decreased
                          resiliency for living a healthy lifestyle.
                 c.       The Children will face additional trauma, if
                          removed from their Foster parent’s home, visitation
                          is started and becomes inconsistent, or the Children
                          continue to bond with their Foster parents only to
                          be removed at [a] later date due to the Parent[s’]
                          documented inability to avoid drug use and the
                          criminal justice system.
        33.)     The Children have been removed from the home and care
                 of their Parents since August of 2017, a time period of
                 approximately twenty five (25) consecutive months
                 through the date of this order. The Children have resided
                 with their current pre-adoptive foster family for the
                 entirety of the 25 months. The Children know this family
                 as their own. The Children have positively responded to
                 the stability and structure, as well as the love and
                 nurturing, provided by the family.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 9 of 15
               34.)     The Children’s DCS case manager, therapist, supervised
                        visitation worker, CASA, and foster father have all
                        testified that the termination of the parent–child
                        relationship and adoption of the Children are in the
                        Children’s best interest. The Court agrees with these
                        opinions, and now accepts and adopts them as its own
                        finding of fact in these proceedings.
       Order pp. 14, 15.


                                  Discussion and Decision
[15]   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, 145 (Ind. 2005). Further,

       we acknowledge that the parent–child relationship is “one of the most valued

       relationships of our culture.” Id. However, although parental rights are of a

       constitutional dimension, the law allows for the termination of those rights

       when parents are unable or unwilling to meet their responsibilities as parents.

       In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

       parental rights are not absolute and must be subordinated to the children’s

       interest in determining the appropriate disposition of a petition to terminate the

       parent–child relationship. Id.

[16]   In reviewing termination proceedings on appeal, this court will not reweigh the

       evidence or assess the credibility of the witnesses. In re Invol. Term. of Parental

       Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider

       the evidence that supports the juvenile court’s decision and reasonable

       inferences drawn therefrom. Id. Where, as here, the juvenile court includes

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 10 of 15
       findings of fact and conclusions thereon in its order terminating parental rights,

       our standard of review is two-tiered. Id. First, we must determine whether the

       evidence supports the findings, and, second, whether the findings support the

       legal conclusions. Id. In deference to the juvenile court’s unique position to

       assess the evidence, we set aside the juvenile court’s findings and judgment

       terminating a parent–child relationship only if they are clearly erroneous. Id. A

       finding of fact is clearly erroneous when there are no facts or inferences drawn

       therefrom to support it. Id. A judgment is clearly erroneous only if the legal

       conclusions made by the juvenile court are not supported by its findings of fact

       or the conclusions do not support the judgment. Id.

[17]   Indiana Code section 31-35-2-4(b)(2) governs what DCS must allege and

       establish to support the termination of parental rights, and for purposes of our

       disposition that was:

               (A) that [t]he child has been removed from the parent for at least
               six (6) months under a dispositional decree[;]
                        [….]
               (B) that [t]here 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[;]
                        [….]
               (C) that termination is in the best interests of the child; and
               (D) that there is a satisfactory plan for the care and treatment of
               the child.
       Ind. Code § 31-35-2-4(b)(2). Mother contends that the juvenile court’s erred in

       concluding that there is a reasonable probability that the conditions that


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 11 of 15
       resulted in the Children’s removal or the reasons for placement outside Parents’

       home will not be remedied and termination is in the Children’s best interests.


                  I. Indiana Code Section 31-35-2-4(b)(2)(B)(i)
[18]   Mother argues that DCS has failed to establish that there is a reasonable

       probability that the reasons for the Children’s continued removal would not be

       remedied. In making such a determination, a juvenile court engages in a two-

       step inquiry. First, the juvenile court must “ascertain what conditions led to

       their placement and retention in foster care.” K.T.K. v. Ind. Dep’t of Child Servs.,

       989 N.E.2d 1225, 1231 (Ind. 2013). After identifying these initial conditions,

       the juvenile court must determine whether a reasonable probability exists that

       the conditions justifying the children’s continued “placement outside the home

       will not be remedied.” In re D.D., 804 N.E.2d 258, 266 (Ind. Ct. App. 2004)

       (citation omitted), trans. denied. The statute focuses not only on the initial

       reasons for removal “but also those bases resulting in continued placement

       outside the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans.

       denied. In making this second determination, the juvenile court must judge a

       parent’s fitness to care for her children at the time of the termination hearing,

       taking into consideration evidence of changed conditions. In re D.D., 804

       N.E.2d at 266. DCS need not rule out all possibilities of change; rather, it must

       establish that there is a reasonable probability that the parent’s behavior will not

       change. In re B.J., 879 N.E.2d 7, 18–19 (Ind. Ct. App. 2008), trans. denied.

[19]   Here, the reason for the Children’s removal was Mother’s abandonment of

       them to the care of an acquaintance of short duration for several days so that
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 12 of 15
       she (it was suspected) could do drugs. Since the Children’s removal, Mother’s

       substance-abuse issues, if anything, have worsened. In the early months of the

       CHINS case, Mother completed only two out of fourteen requested drug

       screens. In November of 2018, Mother left a drug-rehabilitation program after

       one day. Mother’s last three drug screens in November and December of 2018

       and March of 2019 demonstrate Mother’s ongoing use of illegal substances,

       including methamphetamine, 6-acetymorphine, morphine, methadone,

       fentanyl, amphetamine, norfentanyl, and tramadol.

[20]   Mother’s issues have led to criminal charges as well: in April of 2019, Mother

       pled guilty to methamphetamine possession and unlawful possession of a

       syringe and was given a suspended sentence of over two years. At the time of

       the termination hearing, Mother was incarcerated following her June of 2019

       arrest for four additional drug-related charges and was facing possible

       imposition of the suspended sentence from her April case. In short, the record

       demonstrates a reasonable probability that Mother’s substance-abuse issues will

       not be resolved any time soon.

[21]   Mother, citing her own testimony, argues that she had been “clean” for four

       months at the time of termination, completed “EOP” and a step-down

       program, worked with a home-based care provider, completed a parenting class

       on her own, attended NA, maintained a home, had employment available after

       her release, and “felt she was making progress.” Appellant’s Br. p. 12.

       Mother’s arguments amount to nothing more than requests to reweigh the

       evidence, which we will not do. In re S.P.H., 806 N.E.2d at 879. The juvenile


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 13 of 15
       court did not clearly err in concluding that the reasons for the Children’s

       removal and continued placement in foster care were not likely to be remedied.

                   II. Indiana Code Section 31-35-2-4(b)(2)(C)
[22]   Mother also argues that the juvenile court erred in concluding that termination

       of her parental rights was in the Children’s best interests. We are mindful that,

       in determining what is in the best interests of the Children, the juvenile court is

       required to look beyond the factors identified by DCS and look to the totality of

       the evidence. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185,

       203 (Ind. Ct. App. 2003). In doing so, the juvenile court must subordinate the

       interests of the parents to those of the children involved. Id. Furthermore, this

       court has previously determined that the testimony of a GAL regarding a

       child’s need for permanency supports a finding that termination is in the child’s

       best interests. In the matter of Y.E.C., 534 N.E.2d 273, 276 (Ind. Ct. App. 1992).

       Here, T.R.’s therapist, the visitation supervisor, the FCM, the CASA, and the

       Children’s foster father all testified that termination was in Children’s best

       interests. While this testimony is likely more than enough to support the

       juvenile court’s conclusion to that effect, it is not as though this evidence stands

       alone.

[23]   As mentioned, there is ample evidence to support a conclusion that Mother is in

       the throes of addiction such that she is either unwilling or unable to place the

       needs of the Children before her need to get high. Mother’s failures to complete

       any ordered services and maintain regular visitation, as well as her recent

       criminal convictions and charges, seem to be directly attributable to her

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 14 of 15
       substance abuse, and there is little in the record to suggest that the situation will

       improve any time soon. Several witnesses, unsurprisingly, testified that it

       would be detrimental to the Children to be placed back into that environment.

[24]   The juvenile court also heard a great deal of evidence that the Children were

       thriving with their foster family, including evidence that the Children were

       bonded to them, the Children’s previous medical issues had been addressed,

       and T.R. was doing “[a]mazing” in kindergarten. Tr. Vol. III p. 7. Indeed, the

       Children already refer to at least one of their foster fathers as “Daddy” and to

       their foster brother as “bubby[.]” Tr. Vol. III. p. 9. In light of the evidence of

       Mother’s failure to address her substance abuse and the very positive nature of

       the Children’s pre-adoptive placement, we conclude that the record contains

       more than enough evidence to support the juvenile court’s conclusion that

       termination was in the Children’s best interests.

[25]   The judgment of the juvenile court is affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2472 | April 2, 2020   Page 15 of 15
