MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Apr 27 2018, 7:01 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


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

                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 27, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of A.S.M. (Minor                             22A01-1710-JT-2550
Child) and                                                Appeal from the Floyd Circuit
A.M.M. (Mother),                                          Court
                                                          The Honorable Robert L. Bennett,
Appellant-Respondent,
                                                          Senior Judge
        v.                                                Trial Court Cause No.
                                                          22C01-1705-JT-414
The Indiana Department of
Child Services,
Appellee-Petitioner



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018           Page 1 of 11
                                              Case Summary
[1]   A.M.M. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental rights to her minor child, A.S.M. (“Child”). Mother contends that the

      trial court’s order is clearly erroneous in several respects. Finding no error, we

      affirm.


                                  Facts and Procedural History
[2]   Child is the biological child of Mother and S.M. (“Father”) and was born in

      June 2008. In June 2015, the Indiana Department of Child Services (“DCS”)

      filed a petition alleging that Child was a child in need of services (“CHINS”)

      based on Mother’s and Father’s substance use, domestic violence, and concerns

      of sexual abuse by Father. After an initial hearing in July 2015, the trial court

      appointed a court-appointed special advocate (“CASA”) for Child and ordered

      Father to have no contact with Child. In August 2015, the trial court issued an

      emergency order for Child to be removed from Mother’s home based on

      concerns regarding Mother’s use of methamphetamine. After a hearing in

      October 2015, during which Mother admitted that Child was a CHINS, the trial

      court issued an order finding Child to be a CHINS based on “substance abuse

      issues within the home and sexual abuse by” Father. Ex. Vol. at 24. As set

      forth more fully below, the trial court also issued a dispositional order imposing

      numerous requirements on Mother and Father.


[3]   In May 2017, DCS filed a petition to involuntarily terminate Mother’s and

      Father’s parental rights. In September 2017, the trial court held a factfinding


      Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018   Page 2 of 11
hearing and issued a bench ruling in favor of DCS. In December 2017, the

court issued a written order that reads in pertinent part as follows:


        12. A dispositional order was entered on November 2, 2015
        which required Mother and Father to participate in the following
        services:

        a. Contact case manager;
        b. Notify the case manager of pertinent changes;
        c. Notify case manager of arrest or criminal charges[;]
        d. Case manager to visit home;
        e. Enroll in programs recommended;
        f. Keep all appointments;
        g. Sign releases or authorizations to monitor compliance;
        h. Maintain suitable housing;
        i. Maintain a suitable source of income, such as employment;
        j. Assist with protection plan for child to protect child from
        abuse and neglect;
        k. Prohibit the use of drugs;
        1. Obey the law;
        m. Complete a substance abuse assessment and follow all
        recommendations;
        n. Random drug screens;
        o. Refrain from domestic violence[.]

        13. As part of the dispositional order entered on November 2,
        2015 Mother only was required to participate in the following
        services:

        a. Case manager to visit child;
        b. Ensure child is not removed from the county;
        c. Attend to all of child’s medical and mental needs;
        d. Attend all scheduled visitations;
        e. Help care for child and provide food clothing and supervision;
        f. Not allow any person with a no contact order to have access or
        communicate with child;

Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018   Page 3 of 11
        g. Receive caregiver approval from case manager;
        h. Provide child with a safe, secure and nurturing environment.

        14. Mother has failed to substantially comply with the
        dispositional order and specifically, Mother:

        a. Failed to complete a drug abuse assessment or drug
        rehabilitation program;
        b. Failed to gain sobriety and continued to abuse
        methamphetamine during the life of this case with the last drug
        screen dated September 1, 2017 showing positive for
        methamphetamine, less than a month before the final TPR
        hearing;
        c. Failed to maintain suitable housing and was homeless for a
        significant amount of time during the pendency of this matter;
        d. Failed to maintain employment and remained largely
        unemployed throughout the pendency of this matter;
        e. Failed to submit to random drug testing as requested and only
        completed 65 drug screens out of more than 250 that should have
        been taken;
        f. Failed to attend all scheduled visitations.

        ….

        17. CASA filed a report that supports the termination of parental
        rights in this instance.

        18. The plan of adoption is suitable and in the best interests of
        the Child.

        ….

        24. Based upon the foregoing, the Court concludes that DCS has
        met its burden of proof, proving its petition to terminate Mother’s
        and Father’s parental rights by clear and convincing evidence
        that:


Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018   Page 4 of 11
              a. The child has been removed from the home and custody of his
              parents and has been under the supervision of DCS for at least
              fifteen (15) of the most recent twenty-two (22) months, and has
              been removed from the Child’s Mother and Father for more than
              six (6) months pursuant to the terms of the dispositional decree.

              b. There is a reasonable probability that:

              i. The conditions which resulted in the child’s removal and
              continued placement outside the home will not be remedied by
              Mother or Father; or

              ii. That continuation of the parent-child relationship poses a
              threat to the Child's wellbeing.

              c. Termination of parental rights is in Child’s best interests.


              d. There is a satisfactory plan for the care and treatment of the
              Child, that being Adoption.


              ….

              26. All rights, powers, privileges, immunities, duties, and
              obligations concerning the Child, including the right to consent
              to adoption, pertaining to that relationship are permanently
              terminated.


      Appealed Order at 2-5. Mother now appeals.


                                      Discussion and Decision
[4]   Parental rights are protected by the Fourteenth Amendment to the United

      States Constitution, but they are not absolute and must be subordinated to the

      child’s interests in determining the proper disposition of a petition to terminate

      Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018   Page 5 of 11
parental rights. In re W.M.L., 82 N.E.3d 361, 365 (Ind. Ct. App. 2017). Thus,

parental rights may be terminated when a parent is unable or unwilling to meet

her parental responsibilities. Id. A petition for the involuntary termination of

parental rights must allege in pertinent part:


        (A) that one (1) of the following is true:


                 (i) The child has been removed from the parent for at least
                 six (6) months under a dispositional decree.

                 ….

                 (iii) The child has been removed from the parent and has
                 been under the supervision of a local office or probation
                 department for at least fifteen (15) months of the most
                 recent twenty-two (22) months, beginning with the date
                 the child is removed from the home as a result of the child
                 being alleged to be a child in need of services or a
                 delinquent child;


        (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;

Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018   Page 6 of 11
               (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) (emphasis added). DCS must prove “each and

      every element” by clear and convincing evidence. In re G.Y., 904 N.E.2d 1257,

      1261 (Ind. 2009); Ind. Code § 31-37-14-2. If the trial court finds that the

      allegations in the petition are true, the court shall terminate the parent-child

      relationship and enter findings of fact that support the conclusions required by

      that determination. Ind. Code § 31-35-2-8(a), -(c).


[5]   “Our standard of review is highly deferential in cases concerning the

      termination of parental rights.” In re D.P., 27 N.E.3d 1162, 1165 (Ind. Ct. App.

      2015).


               We neither reweigh evidence nor assess witness credibility. We
               consider only the evidence and reasonable inferences favorable to
               the trial court’s judgment. Where the trial court enters findings
               of fact and conclusions thereon, we apply a two-tiered standard
               of review: we first determine whether the evidence supports the
               findings and then determine whether the findings support the
               judgment. In deference to the trial court’s unique position to
               assess the evidence, we will set aside a judgment terminating a
               parent-child relationship only if it is clearly erroneous.


      C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 92-93 (Ind. Ct. App. 2014)

      (citations omitted).




      Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018   Page 7 of 11
       Section 1 – The trial court’s conclusion regarding DCS’s plan
          for Child’s care and treatment is not clearly erroneous.
[6]   Mother first contends that the trial court’s conclusion that there is a satisfactory

      plan for Child’s care and treatment is clearly erroneous because “[n]owhere in

      the findings does the trial court outline any specific facts about the DCS plan,

      the success of its implementation to date, or how the plan has served [Child’s]

      best interests.” Appellant’s Br. at 20. It is well settled that a plan for the care

      and treatment of a child need not be detailed, as long as it offers a general sense

      of the child’s direction after the parent-child relationship is terminated. In re

      A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014), trans. denied. A DCS plan is

      satisfactory if the plan is to attempt to find suitable parents to adopt the child.

      Id. “In other words, there need not be a guarantee that a suitable adoption will

      take place, only that DCS will attempt to find a suitable adoptive parent.” Id.

      Mother’s demand for more specific findings is unwarranted, and therefore we

      conclude that the trial court’s order is not clearly erroneous in this regard.


                   Section 2 – Finding 14 is not clearly erroneous.
[7]   Next, Mother claims that finding 14 improperly focuses on her “historical

      failures” and “does not at all address whether the conditions which led to




      Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018   Page 8 of 11
      [Child’s] removal would be remedied ….” Appellant’s Br. at 23.1 She also

      claims that the finding does not address Child’s best interests. We disagree.


[8]   To determine whether the conditions that resulted in a child’s removal will not

      be remedied, the trial court engages in a two-step analysis. In re A.W., 62

      N.E.3d 1267, 1273 (Ind. Ct. App. 2016). “The court first identifies the

      conditions that led to removal and then determines whether there is a

      reasonable probability that those conditions will not be remedied.” Id. The

      court then judges a parent’s fitness at the time of the termination hearing,

      “taking into consideration evidence of changed conditions, and balancing any

      recent improvements against habitual patterns of conduct to determine whether

      there is a substantial probability of future neglect or deprivation.” Id.

      (quotation marks omitted). “Trial courts have discretion to weigh a parent’s

      prior history more heavily than efforts made only shortly before termination,

      and the court may find that a parent’s past behavior is the best predictor of her

      future behavior.” Id. The trial court may consider services offered by DCS and

      the parent’s response to those services as evidence of whether conditions will be

      remedied. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct.

      App. 2013), trans. denied. DCS “is not required to provide evidence ruling out

      all possibilities of change; rather, it need only establish that there is a reasonable




      1
       Mother also argues that the finding does not address whether she is a threat to Child’s well-being. Because
      Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not address this argument.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018            Page 9 of 11
       probability that the parent’s behavior will not change.” Id. (quotation marks

       omitted).


[9]    The condition that resulted in Child’s removal was Mother’s methamphetamine

       use. The evidence supports the trial court’s findings that Mother continued to

       abuse meth and tested positive for that substance less than a month before the

       termination hearing. The evidence also supports the trial court’s findings that

       Mother failed to complete a drug abuse assessment or drug rehabilitation

       program and completed less than a third of the random drug screens that should

       have been taken. Finding 14 is supported by the evidence and also supports the

       trial court’s conclusion that there is a reasonable probability that Mother’s meth

       use will not be remedied. Accordingly, we cannot say that it is clearly

       erroneous in this regard.


[10]   In determining what is in a child’s best interests, the trial court must look to the

       totality of the evidence and subordinate the interests of the parent to those of

       the child. In re A.G., 45 N.E.3d 471, 479 (Ind. Ct. App. 2015), trans. denied

       (2016). “The court need not wait until the child is irreversibly harmed before

       terminating the parent-child relationship.” Id. The evidence supports the trial

       court’s findings regarding Mother’s continued meth use, unstable housing and

       employment history, and failure to attend all scheduled visitations with Child.

       Finding 14 is supported by the evidence and also supports the trial court’s

       conclusion that termination is in Child’s best interests. Therefore, we cannot

       say that it is clearly erroneous. The trial court’s order is affirmed.



       Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018   Page 10 of 11
[11]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1710-JT-2550 | April 27, 2018   Page 11 of 11
