MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Aug 26 2019, 6:43 am

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
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana
                                                          Robert J. Henke
                                                          Natalie F. Weiss
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          August 26, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of N.W., Mother, and R.W. and                             19A-JT-429
P.W., Minor Children:                                     Appeal from the
N.W.,                                                     Dearborn Circuit Court
                                                          The Honorable
Appellant-Respondent,
                                                          James D. Humphrey, Judge
        v.                                                Trial Court Cause Nos.
                                                          15C01-1811-JT-24
Indiana Department of Child                               15C01-1811-JT-25
Services,
Appellee-Petitioner.



Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-429 | August 26, 2019               Page 1 of 10
[1]   N.W. (“Mother”) appeals the juvenile court’s order involuntarily terminating

      her parental rights to her children, R.W. and P.W. (“Children”). On appeal,

      she contends that the Indiana Department of Child Services (“DCS”) failed to

      demonstrate by clear and convincing evidence that termination of her parental

      rights was in the best interests of Children.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In March of 2017, Mother was living with her two children, R.W., born August

      12, 2013, and P.W., born December 31, 2015. Mother had become addicted to

      opiate prescription medication and was wrestling with other substance abuse

      issues.


[4]   On March 22, 2017, DCS filed petitions alleging that Children were children in

      need of services (“CHINS”) as a result of Mother’s substance abuse issues.

      Specifically, Mother was taking non-prescribed pain medication (oxycodone).

      Tr. Vol. II at 17-18. DCS requested, and the juvenile court authorized, the

      detention of Children pending CHINS adjudication, and Children were

      removed from Mother’s care on March 23, 2017 due to the effect of Mother’s

      substance abuse on them. Id. at 17. At the time DCS became involved, Mother

      was addicted to opiates, dealing with the grief regarding the death of her

      mother, and had seen her husband sentenced to a lengthy term in prison. Id. at

      46. On May 18, 2017, the juvenile court determined that Mother had substance

      abuse issues and had admitted she could benefit from services, and on June 28,

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-429 | August 26, 2019   Page 2 of 10
      2017, the juvenile court found Children to be CHINS and entered a

      dispositional order, under which Mother was ordered to participate in various

      services and follow certain guidelines. Id. at 18.


[5]   In September 2017, Mother was arrested and charged with theft for taking

      merchandise from a Walmart store without paying for it. Id. at 28. Mother

      pleaded guilty and was placed on probation. A probation violation was filed on

      October 1, 2018, when Mother tested positive for buprenorphine without a

      valid prescription. Id. at 29. A warrant was issued for her arrest, and she was

      incarcerated for violating her probation and released sometime in late 2018 or

      early 2019. Id. at 29-30.


[6]   Under the dispositional order, Mother was referred to an intensive outpatient

      program (“IOP”) for substance abuse treatment, but she stopped attending in

      November of 2017, then came back for one session in April 2018, but was

      ultimately terminated from the service. Id. at 14-15. Mother had also

      participated in in-home and visitation services until November of 2017 when

      she stopped appearing for court hearings and family team meetings and became

      non-complaint in visitation services. Id. at 19-20, 25, 28. Mother was referred

      to drug screen services, but she was sporadic in her compliance, failing six out

      of thirteen screens and was terminated from the service in late 2017. Id. at 21-

      23.


[7]   Mother only met with her home-based case manager one time in November

      2017 and had no further communication with her. Id. at 8-9. In February


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-429 | August 26, 2019   Page 3 of 10
      2018, a supervisor for the home-based service provider took over Mother’s case,

      and the file remained open for several months, but the supervisor was unable to

      get into contact with Mother during that period of time. Id. at 11.


[8]   Mother only attended two Child and Family Team Meetings, although one was

      held every three months, and Mother fell asleep during one of the meetings she

      attended. Id. at 26-27. The FCM’s last contact with Mother was in August

      2018, when Mother stated she wanted to voluntarily relinquish her parental

      rights. Mother did not see Children after November 2017. Id. at 24. Before

      that date, Mother participated sporadically in visitation, and she did not

      attempt to reengage in visitation services at any point after November 2017. Id.

      at 27-28. At the termination hearing, Mother testified she was not sure when

      she had last seen Children and she was “surprised” that she last visited with

      them in November 2017. Id. at 51.


[9]   On November 7, 2018, DCS filed petitions to terminate Mother’s parental

      rights to Children, and on January 2, 2019, the juvenile court commenced a

      hearing on the petitions. Evidence was presented that Mother had not

      completed any services since November 2017. Id. at 19. At the time of the

      evidentiary hearing, DCS’s plan for Children was adoption. Id. at 32. Children

      were doing well in their pre-adoptive home and had bonded to their foster

      parents. Id. The FCM stated that she did not believe that the conditions that led

      to Children’s removal would be remedied and that reuniting Children with

      Mother would be a threat to Children’s well-being and recommended

      termination of parental rights. Id. at 30-31.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-429 | August 26, 2019   Page 4 of 10
[10]   Mother was present at the initial hearing. Id. at 4. There, she was provided

       with the time and date for the evidentiary hearing, but she failed to appear at

       the evidentiary hearing without any explanation. Id. 4-5. The juvenile court

       ruled that Mother had proper notice and held the hearing in her absence. Id. at

       5. At the conclusion of the evidence, the juvenile court took the matter under

       advisement. Following the evidentiary hearing, Mother contacted her

       attorney, who requested that the juvenile court re-open the case for a hearing on

       Mother’s evidence. Id. at 38-39. The juvenile court granted the request and

       held a second evidentiary hearing on January 10, 2019. Id. at 39. The juvenile

       court again took the matter under advisement. On January 28, 2019, the

       juvenile court issued an its order terminating Mother’s parental rights to

       Children. Appellant’s App. Vol. 2 at 37-40. Mother now appeals.


                                      Discussion and Decision
[11]   “The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.” In

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

       are subordinate to the children’s interests in determining the proper disposition

       of a petition to terminate parental rights. Id. Parental rights may be terminated

       when a parent is unable or unwilling to meet her parental responsibilities. In re

       L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied, 534

       U.S. 1161 (2002). The purpose of terminating parental rights is not to punish

       the parent, but to protect the children. In re D.D., 804 N.E.2d 258, 264-65 (Ind.

       Ct. App. 2004), trans. denied. In reviewing termination proceedings on appeal,

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-429 | August 26, 2019   Page 5 of 10
       we will neither re-weigh the evidence nor assess the credibility of the witnesses.

       In re S.P.H., 806 N.E.2d 874, 879-80 (Ind. Ct. App. 2004). We only consider

       the evidence that supports the trial court’s decision and reasonable inferences

       drawn therefrom. Id.


[12]   Our standard of review for the trial court’s findings of fact and conclusions

       thereon is two-tiered. Id. First, we must determine whether the evidence

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

       of law. Id. In deference to the trial court’s unique position to assess the

       evidence, we set aside the trial 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 conclusions of law

       drawn by the trial court are not supported by its findings of fact or the

       conclusions of law do not support the judgment. Id.


[13]   Before an involuntary termination of parental rights may occur, the State is

       required to allege and prove, among other things:


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


               (i) There is a reasonable probability that the conditions that
               resulted in the child’s removal or the reasons for placement
               outside the home of the parents will not be remedied.


               (ii) There is a reasonable probability that the continuation of the
               parent-child relationship poses a threat to the well-being of the
               child.
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-429 | August 26, 2019   Page 6 of 10
               (iii) The child has, on two (2) separate occasions, been
               adjudicated a child in need of services;


               (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). The State’s burden of proof for establishing these

       allegations in termination cases “is one of ‘clear and convincing evidence.’” In

       re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App. 2009). Moreover, if the court finds

       that the allegations in a petition described in section 4 of this chapter are true,

       the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a)

       (emphasis added).


[14]   Mother argues that the juvenile court erred in finding that DCS met its burden

       of proof to support termination of her parental rights. Specifically, Mother

       contends only that DCS failed to prove that termination was in the best interests

       of Children. She concedes that there was evidence presented that she did not

       meet the requirements of the dispositional order but contends that this failure to

       meet each and every element of the order was not sufficient to demonstrate that

       termination was in best interest of Children. Mother asserts that she had made

       substantial improvements in her life at the time of the evidentiary hearing and

       that she should have been given more time to get her life back in order. She

       claims that while termination of her parental rights will have little or no effect

       on her children, it will withdraw services previously afforded to her.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-429 | August 26, 2019   Page 7 of 10
[15]   We are not without sympathy to Mother’s plight, but our focus is on the

       children. In considering whether the termination of parental rights is in their

       best interest, the trial court is required to look to the totality of the evidence and

       must subordinate the interests of the parent to those of the children involved. In

       re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re D.D., 804 N.E.2d

       at 267), trans. dismissed. In doing so, the trial court must subordinate the

       interests of the parents to those of the child involved. Id. A parent’s historical

       inability to provide a suitable, stable home environment along with the parent’s

       current inability to do so supports a finding that termination is in the best

       interest of the child. In re A.P., 981 N.E.2d 75, 82 (Ind. Ct. App. 2012).

       Testimony of the service providers, in addition to evidence that the conditions

       resulting in removal will not be remedied, are sufficient to show by clear and

       convincing evidence that termination is in the child’s best interests. In re A.S.,

       17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans. denied.


[16]   Here, the evidence showed that Mother had a serious drug addiction, which is

       the reason why Children were removed from her care initially. At the time

       Children were removed from Mother’s care, she was taking oxycodone for

       which she did not have a prescription. Although ordered to participate in drug

       screens, Mother did not participate in most of the drug screens and failed six

       out of the thirteen to which she did submit. Her referral for drug screens was

       cancelled due to the fact that she missed too many appointments. Additionally,

       Mother never completed any of the services recommended by DCS, and she

       stopped attending IOP in November 2017, coming back for one session in April


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-429 | August 26, 2019   Page 8 of 10
       2018, and then never attending again. Mother was also incarcerated for a drug-

       related issue when she tested positive for buprenorphine without a valid

       prescription while on probation. Further, Mother had not seen Children or

       participated in visitation with them for over a year prior to the evidentiary

       hearing. Before that date, Mother participated sporadically in visitations and

       did not try to reengage in visitation services after November 2017.


[17]   Mother essentially contends that the juvenile court should have given her more

       time to meet the DCS requirements. However, a trial court need not wait until

       a child is irreversibly harmed such that his or her physical, mental, and social

       development is permanently impaired before terminating the parent-child

       relationship. In re A.K., 924 N.E.2d at 224. Additionally, a child’s need for

       permanency is an important consideration in determining the best interests of a

       child. Id. (citing McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d

       185, 203 (Ind. Ct. App. 2003)). In addition to the evidence showing that

       Mother had not participated in services or otherwise abided by the dispositional

       decree, the FCM testified that she believed termination of Mother’s parental

       rights would be in Children’s best interests. Based on the totality of the

       evidence, we conclude that the evidence supported the juvenile court’s

       determination that termination of Mother’s parental rights was in Children’s

       best interests. Mother’s arguments to the contrary are a request for this court to

       reweigh the evidence, which we cannot do. In re S.P.H., 806 N.E.2d at 879-80.

       The juvenile court’s conclusion was supported by clear and convincing

       evidence, and we affirm its judgment.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-429 | August 26, 2019   Page 9 of 10
[18]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-429 | August 26, 2019   Page 10 of 10
