Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                            Apr 29 2014, 10:04 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS:                            ATTORNEYS FOR APPELLEE:

JILL DOGGETT                                        GREGORY F. ZOELLER
Hart Bell, LLC                                      Attorney General of Indiana
Vincennes, Indiana
                                                    ROBERT J. HENKE
                                                    DAVID E. COREY
                                                    Deputies Attorney General
                                                    Indianapolis, Indiana

                                IN THE
                      COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF                 )
THE PARENT-CHILD RELATIONSHIP OF:                   )
                                                    )
P.C., J.W., and K.W., Minor Children,               )
                                                    )
S.C., Mother,                                       )
                                                    )
       Appellants-Respondents,                      )
                                                    )
                vs.                                 )      No. 42A01-1307-JT-319
                                                    )
INDIANA DEPARTMENT OF CHILD                         )
SERVICES,                                           )
                                                    )
       Appellee-Petitioner.                         )

                    APPEAL FROM THE KNOX SUPERIOR COURT
                         The Honorable W. Timothy Crowley, Judge
            Cause Nos. 42D01-1212-JT-24, 42D01-1212-JT-25, 42D01-1212-JT-26

                                          April 29, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
        S.C. (Mother)1 appeals the termination of her parental rights to K.W., P.C., and J.W.

(Children). She argues the Department of Child Services (DCS) did not present sufficient

evidence to prove the conditions under which Children were removed would not be remedied

and that termination was in the best interests of Children. We affirm.

                            FACTS AND PROCEDURAL HISTORY

        Mother is the parent of K.W., born January 19, 2004; P.C., born July 7, 2006; and

J.W., born October 6, 2010. On January 27, 2011, DCS removed Children from Mother’s

home after Mother tested positive for methamphetamine and law enforcement found drug

paraphernalia in her home. On February 14, 2011, Mother admitted Children were Children

in Need of Services (CHINS) and the trial court adjudicated Children as such. On March 14,

2011, the trial court held a dispositional hearing and ordered Mother to, among other things,

maintain contact with DCS and service providers; maintain suitable, safe, and stable housing

for Mother and Children; maintain a legal source of income; abstain from the use of illegal

drugs; complete a substance abuse assessment and follow the recommendations thereof;

submit to random drug screens; refrain from the commission of any acts of domestic

violence; and participate in visitation with Children.

        Mother did not comply with the trial court’s order, and DCS filed petitions to

terminate Mother’s rights to Children. The trial court conducted evidentiary hearings and

then, on June 17, 2013, issued orders terminating Mother’s parental rights.


1
 The parental rights of the father of each child were also terminated. However, none of the fathers participate
in this appeal.

                                                      2
                             DISCUSSION AND DECISION

       We review termination of parental rights with great deference. In re K.S., 750 N.E.2d

832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge credibility of

witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we

consider only the evidence and reasonable inferences most favorable to the judgment. Id. 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. In re L.S.,

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S. 1161 (2002).

       When, as here, a judgment contains specific findings of fact and conclusions thereon,

we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children,

839 N.E.2d 143, 147 (Ind. 2005). We determine whether the evidence supports the findings

and whether the findings support the judgment. Id. “Findings are clearly erroneous only

when the record contains no facts to support them either directly or by inference.” Quillen v.

Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the trial

court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.

       “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. A trial court must subordinate the interests

of the parents to those of the child, however, when evaluating the circumstances surrounding

a termination. In re K.S., 750 N.E.2d at 837. The right to raise one’s own child should not

                                              3
be terminated solely because there is a better home available for the child, id., but parental

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

responsibilities. Id. at 836.

       To terminate a parent-child relationship:

       (2) The petition must allege:
              (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.
                      (ii) A court has entered a finding under IC 31-34-21-5.6 that
                      reasonable efforts for family preservation or reunification are
                      not required, including a description of the court’s finding, the
                      date of the finding, and the manner in which the finding was
                      made.
                      (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;
       (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 must prove these allegations by clear and convincing

evidence. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied. If the court finds

the allegations in the petition are true, the court must terminate the parent-child relationship.


                                               4
Ind. Code § 31-35-2-8.

       Mother challenges the sufficiency of the evidence supporting the trial court’s findings

under subsections (B) and (C) of Section 31-35-2-4(b)(2).

       1.     Reasonable Probability Conditions will not be Remedied

       Because our legislature wrote subsection (B) in the disjunctive, a trial court needs to

find only one of the three requirements established by clear and convincing evidence before

terminating parental rights. In re L.S., 717 N.E.2d at 209. The trial court found the

conditions that resulted in Children’s removal would not be remedied.

       In making such a determination, a trial court must judge a parent’s fitness to care for

his or her child at the time of the termination hearing, taking into consideration evidence of

changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. It

must evaluate the parent’s habitual patterns of conduct to determine whether there is a

substantial probability of future neglect or deprivation. Id. Pursuant to this rule, courts have

properly considered evidence of a parent’s prior criminal history, drug and alcohol abuse,

history of neglect, failure to provide support, and lack of adequate housing and employment.

A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App.

2002), trans. denied. The trial court may also properly consider, as evidence of whether

conditions will be remedied, the services offered to the parent by DCS, and the parent’s

response to those services. Id. A trial court need not wait until a child is irreversibly

influenced by a deficient lifestyle such that his or her physical, mental, and social growth are



                                               5
permanently impaired before terminating the parent-child relationship. In re E.S., 762

N.E.2d 1287, 1290 (Ind. Ct. App. 2002).

        The trial court found and concluded:2

               [Mother] has failed to remedy the reasons for removal and for continued
        placement of the child outside of the home. She has failed to substantially and
        continuously comply with this Court’s orders as set forth below.
               a.     [Mother] has failed to keep many of her appointments with the
                      Family Case Manager from the Department of Child Services
                      and with service providers.
               b.     [Mother] has failed to consistently participate in visitation and
                      has missed a number of scheduled visits with [Children]. The
                      lack of progress in following this Court’s orders resulting in
                      [Mother] receiving only supervised visitation for the major
                      portion of the pendency of the CHINS and termination
                      proceedings.
               c.     [Mother] lost her housing and was unable to obtain and maintain
                      adequate housing for herself and [Children] during the pendency
                      of these proceedings.
               d.     [Mother] failed to properly address her substance abuse issues.
                      She did attend a substance abuse evaluation, but failed to follow
                      through with treatment. Her case was subsequently closed by
                      the service provider, the Samaritan Center in Vincennes,
                      Indiana, due to [Mother’s] failure to attend the scheduled
                      therapy sessions.
               e.     [Mother] failed to remain drug free, and continued to test
                      positive for controlled substances during the pendency of the
                      CHINS and termination proceedings. In addition, [Mother]
                      failed to submit to a number of drug screens that were requested
                      by the Department of Child Services. Most of [Mother’s] drug
                      screens were positive for marijuana. Fourteen of [Mother’s]
                      positive drug screens were positive for methamphetamine.
                      [Mother] has not submitted a clean drug screen since August 17,
                      2012.
               f.     [Mother] was arrested and incarcerated on several occasions
                      during the pendency of the CHINS proceedings. Charges of

2
 The trial court issued a separate termination order for each child. The orders are identical, except for the
child’s identifying information and the information regarding that child’s father. We cite from the trial court’s
order regarding P.C.
                                                       6
                      possession of methamphetamine, maintaining a common
                      nuisance and possession of paraphernalia were filed against
                      [Mother] during the pendency of the CHINS proceedings.
                      Those charges remain pending in Knox Superior Court 1.
                      [Mother] was also arrested, charged and convicted of criminal
                      conversion in the Knox Superior Court II during the pendency
                      of the CHINS proceedings.

(App. at 14-15.)

       Mother argues the State did not present sufficient evidence the conditions under which

Children were removed from her care would not be remedied. She contends she “complied

with the Orders of the Court[,]” “did obtain and maintain housing for periods of time[,]”

“obtained legal means to support herself and [Children] during the CHINS case[,]” and

completed visitation with Children. (Br. of Appellant at 9-11.) Mother also claims she:

       followed Court orders regarding illegal substances by remaining drug free for
       significant periods of time during the life of the case. Though her compliance
       was not always perfect, [Mother] had periods during the case where she
       submitted regular, random screens, which were negative for all substances.
       [Mother] submitted regular, clean screens from approximately February 18,
       2011 through November 29, 2011, a period of over nine months. [Mother]
       was very close to having [Children] returned to her care during this period of
       time. [Mother] also submitted regular, clean screens from March 30, 2012
       through July 3, 2012, another extended period of over three months. At the
       time of the termination hearings, [Mother] was attempting to seek additional
       addiction counseling with the help of her service providers.

(Id. at 11) (citations to the record omitted).

       However, DCS presented evidence Mother did not attend individual and substance

abuse counseling as ordered; was arrested multiple times during the proceedings; was evicted

from the apartment she shared with Children due to her drug use, after which she lived with

family and friends until she moved in with her current husband’s father; had an unstable

                                                 7
employment history; and was required to participate in supervised visits with Children due to

non-compliance with the trial court’s orders. Regarding Mother’s substance abuse, DCS

presented evidence she missed over forty-five drug screens, tested positive for marijuana

and/or methamphetamine twenty times since September 14, 2012, including two positive

drug screens during the time the trial court held the evidentiary hearings. Mother’s

arguments are an invitation for us to reweigh the evidence, which we cannot do. See In re

D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge credibility of

witnesses). DCS presented sufficient evidence that the conditions under which Children

were removed from Mother’s care would not be remedied.

       2.      Best Interests of Child

       In determining what is in the best interests of a child, the juvenile court is required to

look beyond the factors identified by DCS and look to the totality of the evidence. McBride

v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In

so doing, the juvenile court must subordinate the interests of the parent to those of the child.

Id. Recommendations from the case manager and child advocate that it would be in the

child’s best interest to terminate the parent-child relationship, 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 M.M., 733 N.E.2d

6, 13 (Ind. Ct. App. 2000).

       Regarding the best interests of Children, the trial court found and concluded:

       4.     That it has been established by clear and convincing evidence that the
       allegations of the termination petition are true in that termination of the parent-
                                               8
       child relationship is in the best interest of the child.
              . . . [Mother’s] continuing drug issues and the chronic instability of her
       home have made a stable and nurturing relationship with [Children]
       impossible. While it is clear that [Mother] loves her [Children], she has been
       unable, or unwilling, since the removal of [Children] to do the things necessary
       to bring about reunification with [Children]. Both the father and [Mother]
       have demonstrated an inability to regulate and consistently meet the needs of
       [Children].

(App. at 15.) Mother argues she has made progress in services, and is on the path to being

drug free. Based on the evidence cited in the above section, and Children’s need for

permanency, we cannot agree. DCS presented sufficient evidence termination was in the best

interests of Children. See McBride, 798 N.E.2d at 192-93 (child’s need for permanency

cannot be delayed by possibility parent will eventually be able to care for child).

                                      CONCLUSION

       DCS presented sufficient evidence that the conditions under which Children were

removed from Mother’s care would not be remedied and that termination was in the best

interests of Children. Accordingly, we affirm.

       Affirmed.

KIRSCH, J., and BAILEY, J., concur.




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