MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Mar 08 2018, 8:53 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court

estoppel, or the law of the case.


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



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: Termination of the                                March 8, 2018
Parent-Child Relationship of:                            Court of Appeals Case No.
                                                         82A04-1710-JT-2431
B.C. (Minor Child),
                                                         Appeal from the Vanderburgh
And                                                      Superior Court
C.C. (Mother),                                           The Honorable P. J. Pierson,
Appellant-Respondent,                                    Special Judge
                                                         Trial Court Cause No.
        v.                                               82D04-1704-JT-748

The Indiana Department of Child
Services,
Appellee-Petitioner.



Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018              Page 1 of 14
                                   STATEMENT OF THE CASE
[1]   Appellant-Respondent, C.C. (Mother), appeals the trial court’s termination of

      her parental rights to her minor child, B.C. (Child).


[2]   We affirm.


                                                         ISSUE
[3]   Mother raises one issue on appeal, which we restate as: Whether the Indiana

      Department of Child Services (DCS) presented clear and convincing evidence

      to support the termination of her parental rights.


                         FACTS AND PROCEDURAL HISTORY 1
[4]   Mother is the biological parent of the Child, born on November 25, 2012. T.E.

      is the Child’s alleged father. 2 On September 27, 2015, the Vanderburgh County

      office of DCS received a report alleging that the two-year-old Child was a

      victim of abuse or neglect. Specifically, Mother, while at Wal-Mart with the

      Child, had been discovered shoplifting and was arrested. With no one available

      to care for the Child, DCS met Mother at Wal-Mart and took the Child into




      1
        Although the trial court took judicial notice of the file in this case, none of the filings have been submitted
      to our court. This seems to be an increasing occurrence, and it is incredibly frustrating to our review.
      Nevertheless, in this instance, we are able to resolve the arguments raised by Mother based on the record
      before us.
      2
          The alleged father had no involvement throughout the case and is not a participant in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018                  Page 2 of 14
      custody. During DCS’s assessment of Mother, she admitted to using “[p]ills”—

      i.e., Klonopin and Lortab. (Tr. Vol. II, p. 13).


[5]   On September 29, 2015, DCS filed a petition alleging the Child to be a Child in

      Need of Services (CHINS). On October 7, 2015, Mother stipulated to the facts

      alleged in the CHINS petition, and the trial court adjudicated the Child to be a

      CHINS. On November 4, 2015, the trial court held a dispositional hearing and

      ordered Mother to participate in various services, including a substance abuse

      evaluation and treatment, as well as drug screens. The trial court also directed

      Mother to remain free of drugs and alcohol and to engage in visits with the

      Child. It appears that the formal dispositional order was issued on January 22,

      2016.


[6]   Mother’s subsequent engagement in reunification services was poor. Although

      she refused to participate in DCS’s drug screens, she failed two drug screens for

      the probation department in her criminal case (at least one of which was for

      methamphetamine)—one in April of 2016 and the other in May of 2016.

      Mother admitted that she was using drugs on a daily basis. For the probation

      violations, Mother was incarcerated for thirty days and ninety days,

      respectively. At some point, DCS discussed in-patient substance abuse

      treatment with Mother, but Mother refused, indicating that “jail is what would

      help.” (Tr. Vol. II, p. 136). When Mother was not incarcerated, she

      participated in supervised visits with the Child.




      Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 3 of 14
[7]   In August of 2016, due to the stagnancy of the case, the permanency plan was

      changed from reunification to adoption. Nevertheless, DCS continued to offer

      services to Mother. Around that time, the reality of losing her Child set in, and

      Mother indicated that she became motivated to participate. On September 14,

      2016, Mother appeared for her first DCS drug screen. While Mother did not

      have controlled substances in her system at that time, she tested positive for

      alcohol use. Between September of 2016 and May of 2017, Mother appeared

      for thirteen additional drug screens, none of which were positive for controlled

      substances. However, five of those drug screens were diluted, which is

      generally viewed as an attempt to conceal drug usage. Furthermore, Mother

      was required to regularly call in order to determine whether she was scheduled

      for a random drug screen, and by her own estimate, Mother should have

      submitted to “seventy[ or] eighty” drug screens throughout the case. (Tr. Vol.

      II, p. 25). In November of 2016, Mother attended an appointment for a

      substance abuse evaluation, but she missed her follow-up appointment and

      never re-scheduled.


[8]   Despite Mother’s non-compliance with drug screens, her interactions with the

      Child went well. That said, Mother regularly failed to comply with the

      visitation service provider’s rules, and a few safety issues were noted during the

      visits—such as the Child finding two loose pills (Ibuprofen and Vitamin E) in

      his bedroom and having access to a BB gun. Mother also exhibited aggressive

      behavior toward the visitation supervisor. Mother generally maintained some

      form of employment throughout the case, and DCS did not have concerns


      Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 4 of 14
       about Mother’s ability to provide suitable housing and food for the Child.

       Thus, in mid-December of 2016, the Child was returned to Mother for a trial

       home visit. At the beginning of January, Mother and her boyfriend were

       involved in a domestic dispute in front of the Child, which apparently resulted

       in the arrest of Mother’s boyfriend, although no charges were pursued. Then,

       at some point during the trial home visit, Mother stopped communicating with

       DCS, and DCS became concerned that “something was wrong.” (Tr. Vol. II,

       p. 133). On January 20, 2017, the DCS family case manager went to Mother’s

       house and administered a drug screen. While waiting for the results, Mother

       “was crying” and admitted that she had been drinking water to dilute the test

       results because she knew it would return positive for methamphetamine and

       marijuana. (Tr. Vol. II, p. 134). The test was positive for methamphetamine.

       That day, the Child was removed and returned to foster care.


[9]    On February 23, 2017, Mother enrolled herself in in-patient drug treatment at

       Stepping Stone; however, she was terminated from the program the following

       month. On April 25, 2017, DCS filed a petition to terminate Mother’s parental

       rights. Even after the petition was filed, DCS continued to provide Mother

       with visitation services. In May of 2017, Mother began out-patient drug

       treatment at Counseling for Change. Mother does not have a driver’s license,

       and she relies primarily on public transportation to get to work, counseling, and

       visits with the Child.


[10]   On August 11, 2017, the trial court conducted a hearing on DCS’s termination

       petition. At the hearing, Mother claimed that, with the exception of a positive

       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 5 of 14
       screen for marijuana, she had otherwise been sober for seven months and

       remained in counseling. Mother was also engaging in weekly visits with the

       Child. Mother argued that if DCS had assisted her with transportation, she

       would have been able to regularly comply with drug screens and drug

       counseling during the case. In turn, DCS presented evidence of Mother’s non-

       compliance with her required services, as well as evidence that Mother had

       never indicated a need for transportation assistance and had actually refused the

       services of a parent aide. By the time of the termination hearing, the Child had

       spent nearly half of his life in foster care, and both DCS and the Child’s court-

       appointed special advocate (CASA) recommended termination of Mother’s

       parental rights. On September 18, 2017, the trial court issued an Order on

       Involuntary Termination of Parental Rights of Mother.


[11]   Mother now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[12]   Mother challenges the termination of her parental rights. 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 Cnty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). In fact, “[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)). Nevertheless, parental rights “are not absolute and must be


       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 6 of 14
       subordinated to the child’s interests in determining the proper disposition of a

       petition to terminate parental rights.” Id. When “parents are unable or

       unwilling to meet their parental responsibilities,” termination of parental rights

       is appropriate. Id. We recognize that the termination of a parent-child

       relationship is “an ‘extreme measure’ and should only be utilized as a ‘last

       resort when all other reasonable efforts to protect the integrity of the natural

       relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child

       Servs., 39 N.E.3d 641, 646 (Ind. 2015).


[13]   Indiana courts utilize a “deferential standard of review in cases concerning the

       termination of parental rights” because of the trial court’s “unique position to

       assess the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010),

       trans. dismissed. On appeal, our court neither reweighs evidence nor assesses the

       credibility of witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225,

       1229 (Ind. 2013). We consider only the evidence and any reasonable inferences

       that support the trial court’s judgment, giving deference to the trial court’s

       “opportunity to judge the credibility of the witnesses firsthand.” Id. Where, as

       in this case, the trial court enters special findings of fact and conclusions

       thereon in accordance with Indiana Trial Rule 52(A), we evaluate whether the

       trial court’s decision is clearly erroneous. Id. Under this standard, we must

       determine “whether the evidence clearly and convincingly supports the findings

       and the findings clearly and convincingly support the judgment.” Id. at 1230.


                                 II. Termination of Parental Rights Statute

[14]   In order to terminate a parent’s rights to her child, DCS must prove:

       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 7 of 14
        (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 . . . 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 [CHINS] . . . ;

        (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 [CHINS];

        (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). DCS must prove each of the foregoing elements by

clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,

92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the

existence of a fact to ‘be highly probable.’” Id. “Clear and convincing evidence

need not reveal that the continued custody of the parents is wholly inadequate

Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 8 of 14
       for the child’s very survival. Rather, it is sufficient to show by clear and

       convincing evidence that the child’s emotional and physical development are

       threatened by the respondent parent’s custody.” K.T.K., 989 N.E.2d at 1230.


[15]   In ordering the termination of Mother’s parental rights, the trial court

       concluded that DCS had established each element of Indiana Code section 31-

       35-2-4(b)(2). On appeal, Mother does not contest that the Child has been

       removed from the home for the requisite period of time or that DCS has

       established a satisfactory plan for the Child’s care and treatment. We address

       the remaining elements in turn.


                   A. Remediation of the Conditions Resulting in the Child’s Removal 3

[16]   In determining whether there is a reasonable probability that conditions will not

       be remedied, we must identify what conditions led to the Child’s “placement

       and retention” outside the home and subsequently determine whether there is a

       reasonable probability that those conditions will not be remedied. Id. at 1231.

       A court “must judge a parent’s fitness ‘as of the time of the termination

       proceeding, taking into consideration evidence of changed conditions’—

       balancing a parent’s recent improvements against ‘habitual pattern[s] of




       3
         Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS is required to prove only
       one of three listed elements. See In re A.K., 924 N.E.2d at 220-21. In this case, DCS did not allege that the
       Child had twice been adjudicated a CHINS; therefore, the two relevant inquiries are whether there is a
       reasonable probability that the conditions resulting in the Child’s removal and continued placement outside
       of the home will not be remedied or whether there is a reasonable probability that the continuation of the
       parent-child relationship poses a threat to the Child’s well-being. We elect to dispose of this issue by reliance
       on the former element.

       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018                Page 9 of 14
       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) (citation omitted)

       (quoting Bester, 839 N.E.2d at 152; K.T.K., 989 N.E.2d at 1231). “Habitual

       conduct may include ‘criminal history, drug and alcohol abuse, history of

       neglect, failure to provide support, and lack of adequate housing and

       employment.’” K.E., 39 N.E.3d at 647. DCS need not “provide evidence

       ruling out all possibilities of change; rather, it need only establish ‘that there is a

       reasonable probability that the parent’s behavior will not change.’” A.D.S. v.

       Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans.

       denied.


[17]   In this case, the Child was removed from Mother’s care when she was arrested

       for shoplifting, leaving no other suitable caregiver. The Child then remained a

       ward of DCS because of Mother’s ongoing substance abuse. The trial court

       determined that


                 [o]verall, Mother has failed to remedy the situation that brought
                 about the removal of the [Child]. Based on the pattern of
                 behaviors and continuing pattern of substance abuse by Mother,
                 the [c]ourt finds that there is not a reasonable probability that the
                 situation which brought about the removal of the [C]hild is likely
                 to be remedied. The [c]ourt finds that Mother’s past behavior
                 and failure to address the issues are the best predictors of her
                 future behavior.


       (Appellant’s App. Vol. II, p. 7).




       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 10 of 14
[18]   Notwithstanding Mother’s “admitted pervasive history of substance abuse,” she

       now claims that as of the termination hearing she


               was doing well in her treatment at Stepping Stone. Mother
               voluntarily sought out the Stepping Stone treatment program in a
               desire for long-term sobriety because she loved her son. Mother
               was employed at the time of trial despite having to quit her job in
               order to make her scheduled visitation with the [C]hild.
               Mother’s current status at the time of her termination trial was
               stable and clean. The original conditions of her addictions were
               in the process of being remedied at the time of termination.


       (Appellant’s Br. p. 7) (internal citations omitted). Mother further argues that

       “[n]o evidence was presented that the [C]hild would be harmed or

       disadvantaged in any way by delaying termination”; thus, she should be

       permitted to “continue on toward reunification.” (Appellant’s Br. pp. 7-8).


[19]   We find that ample evidence supports the trial court’s determination. Mother

       began taking illegal drugs when she was thirteen years old and has no support

       system as most of her immediate family members—i.e., her father, sister, and

       brother—also have long histories of substance abuse. Most of Mother’s

       relationships have been with men involved in substance abuse, including the

       Child’s alleged father. Mother declined to participate in either in-patient or out-

       patient drug treatment until well after the Child’s permanency plan had been

       changed to adoption. Even then, she was quickly terminated from Stepping

       Stone’s in-patient program for violating rules, and she never submitted any

       documentation to DCS regarding her participation in out-patient counseling at

       Counseling for Change. As of the termination hearing, the Child had been

       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 11 of 14
       removed from Mother’s care for two years, but Mother had yet to complete any

       substance abuse program. Furthermore, Mother submitted to relatively few

       drug screens for DCS, and five out of fourteen were diluted. Despite having

       filed the petition to terminate Mother’s rights, DCS continued to offer services

       up until the termination hearing and, at one point, attempted a trial home visit.

       However, Mother could not even maintain sobriety for the thirty-five days that

       the Child was home, and he had to return to foster care. Although Mother

       claimed to have been sober for seven months at the termination hearing, with

       the admitted exception of marijuana use at least once, her refusal to regularly

       submit to DCS’s drug screens made this assertion impossible to verify.


[20]   Ultimately, Mother’s history of relapse and refusal to meaningfully engage in

       substance abuse treatment gives rise to valid concerns that she will continue

       with her cycle of addiction. It is well established that “[a] pattern of

       unwillingness to deal with parenting problems and to cooperate with those

       providing social services, in conjunction with unchanged conditions, support a

       finding that there exists no reasonable probability that the conditions will

       change.” Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 372

       (Ind. Ct. App. 2007), trans. denied. Given that two years without her Child was

       not enough to spur Mother into completing treatment, the trial court properly

       concluded that there is a reasonable probability that the conditions resulting in

       the Child’s removal and continued placement out of the home will not be

       remedied.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 12 of 14
                                          B. Best Interests of the Child

[21]   At the end of her appellate brief, for the first time, Mother mentions the Child’s

       best interests. More particularly, she simply asserts that the “lack of evidence”

       that the Child would be harmed by delaying termination “goes towards the best

       interests of the child.” (Appellant’s Br. p. 8). While Mother’s lack of a cogent

       argument regarding this element would warrant a finding that she has waived

       the issue for appeal, we will address the matter in light of the serious rights at

       stake. See Ind. Appellate Rule 46(A)(8)(a).


[22]   The parent-child relationship is undoubtedly “one of the most valued

       relationships in our culture.” Bester, 839 N.E.2d at 147 (quoting Neal v. DeKalb

       Cnty. Div of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). Thus, the

       purpose of terminating a parent-child relationship is to protect the child, not to

       punish the parent. In re C.C., 788 N.E.2d 847, 855 (Ind. Ct. App. 2003), trans.

       denied. When considering whether termination would be in a child’s best

       interests, the trial court must “look beyond the factors identified by [DCS] and .

       . . look to the totality of the evidence.” A.D.S., 987 N.E.2d at 1158. “The trial

       court need not wait until the child is irreversibly harmed such that the child’s

       physical, mental and social development is permanently impaired before

       terminating the parent-child relationship.” K.T.K., 989 N.E.2d at 1235. It is

       well established that “[p]ermanency is a central consideration in determining

       the [child’s] best interests.” Id. (alterations in original) (quoting In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009)).




       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 13 of 14
[23]   The trial court determined that termination of Mother’s parental rights is in the

       Child’s best interests based, in part, on the recommendation of DCS and the

       Child’s CASA. See In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (“[T]he

       recommendations of the case 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.”). The evidence

       establishes that because of Mother’s substance abuse, the Child was removed

       from her care on two occasions and, as of the termination hearing, had spent

       nearly half of his life in foster care. Mother’s failure to engage in treatment for

       her addiction renders her unable to provide a safe and permanent life for the

       Child. In addition, Mother has already demonstrated that the Child has no

       other caregiver in the event she is arrested again—a risk she takes by continuing

       to use illegal substances. Accordingly, we agree with the trial court that the

       evidence establishes that the Child’s best interests are served by termination of

       Mother’s parental rights.


                                             CONCLUSION
[24]   Based on the foregoing, we conclude that DCS presented clear and convincing

       evidence to support the termination of Mother’s parental rights.


[25]   Affirmed.


[26]   Baker, J. and Brown, J. concur



       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-JT-2431 | March 8, 2018   Page 14 of 14
