MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                     Jul 08 2019, 10:38 am
regarded as precedent or cited before any                                         CLERK
court except for the purpose of establishing                                  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
Cynthia Phillips Smith                                    Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana

                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         July 8, 2019
Child Relationship of:                                    Court of Appeals Case No.
                                                          19A-JT-210
F.S. and A.S. (Minor Children)
                                                          Appeal from the Tippecanoe
              and                                         Superior Court
A.N. (Mother),                                            The Honorable Faith Graham,
Appellant-Respondent,                                     Judge
                                                          Trial Court Cause Nos.
        v.                                                79D03-1805-JT-77, 79D03-1805-
                                                          JT-78
The Indiana Department of
Child Services,
Appellee-Petitioner



Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019                           Page 1 of 13
                                                   Case Summary


[1]   A.N. (Mother) appeals from the involuntary termination of her parental rights

      to two of her minor children, F.S. and A.S. (collectively, the Children). 1 She

      challenges the sufficiency of the evidence supporting the termination order.


[2]   We affirm.


                                          Facts & Procedural History 2


[3]   On November 21, 2016, the day after A.S.’s birth, the Department of Child

      Services (DCS) became involved with the family because A.S.’s cord blood

      tested positive for cocaine. The following day, a hair follicle test was performed

      on F.S., who was eighteen months old. The test later returned positive for

      methamphetamine. Mother admitted to cocaine use during the pregnancy, as

      well as spice and marijuana, and acknowledged that she needed help with




      1
          Mother has another child who lives with an established guardian.
      2
       The Children’s father’s rights were also terminated, but Father has not appealed the termination order.
      Accordingly, our recitation of the facts will focus on those related to Mother.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019                      Page 2 of 13
      addressing her substance abuse. At the time, DCS permitted the Children to

      remain in the home with services.


[4]   DCS filed a petition alleging that that the Children were children in need of

      services (CHINS) on December 6, 2016. At the factfinding hearing on January

      31, 2017, Mother and Father both admitted that the Children were CHINS.

      Following the dispositional hearing on February 21, 2017, the trial court

      determined that the Children should remain in Mother’s care and ordered

      Mother to participate in services. Specifically, she was ordered to remain drug

      and alcohol free, submit to random urine screens, participate in individual

      therapy, and complete assessments for substance abuse, domestic violence, and

      parenting and follow all recommendations following the assessments.


[5]   Almost immediately thereafter, the trial court held a modification hearing and

      issued an order, on March 2, 2017, modifying the dispositional decree. The

      court ordered the removal of the Children from Mother’s home and placement

      in foster care based on the following findings:


              Mother and Father have been involved in two (2) domestic
              violence altercations and the children have been present. Father
              has been warned about trespassing and continues to go to the
              home. Mother allowed Bryce Henderson to stay in her home
              and he was arrested for an outstanding warrant. Mother reported
              she had only known Mr. Henderson for approximately one (1)
              month and allowed him to stay as he did not have utilities and
              she felt bad for him.


              Both of these children have been exposed to substances. Mother
              admitted to using cocaine during her pregnancy … [and F.S.]

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019   Page 3 of 13
              tested positive for methamphetamine …. It is a concern Mother
              allowed someone she has only known for a month to reside in
              the home she shares with her children.


      Exhibits Vol. 1 at 26. The Children have remained in foster care since their

      removal.


[6]   In early May 2017, Mother became incarcerated, first in the Tippecanoe

      County Jail and then the Indiana Department of Correction, for battery with a

      deadly weapon. She was placed on work release on or about January 4, 2018.

      Following her release from prison, Mother began participating in services

      referred through DCS. She completed an intake assessment with a therapist at

      Wabash Valley Alliance on January 16, 2018, and a substance use assessment

      later that month. The therapist recommended individual counseling, which

      was scheduled but Mother never attended. Mother began supervised visits with

      the Children at the beginning of February 2018 and had a handful of visits

      before she was reincarcerated from mid-February through mid-April 2018,

      following her use of illegal drugs. Thereafter, she was returned to work release

      where she was serving a term of probation.


[7]   At a permanency hearing on May 17, 2018, the trial court authorized DCS to

      file petitions to terminate the parent-child relationship. Despite the move

      toward termination, the court ordered DCS to continue to fund services for

      Mother, including substance abuse evaluation and treatment, individual

      counseling, case management, and supervised visits. The court noted that

      Mother “needs to be actively complying with all services, submitting to random

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019   Page 4 of 13
      drug screens and staying clean from any and all substances.” Id. at 68. DCS

      filed the instant termination petitions on May 24, 2018.


[8]   DCS re-referred services for Mother after her release from incarceration in April

      2018. Mother visited with the Children three times in April and then did not

      show for a visit on April 26 due to being incarcerated. She then visited with the

      Children on May 22. This was her last contact with the Children, as visitation

      services were suspended due to Mother’s failure to comply with random drug

      screens. Mother had been a no-show for drug screens during the entire month

      of May. She submitted to one screen in June and then none thereafter. Mother

      stopped contacting the family case manager (FCM), Jessica Wingate, entirely

      after June 14, 2018. Additionally, although referred by DCS, Mother never

      completed a parenting assessment, a domestic violence assessment, or

      individual counseling.


[9]   The termination factfinding hearing took place on August 16, 2018 and October

      10, 2018. FCM Wingate testified that Mother had a period of partial

      compliance starting in January 2018, which ended when Mother was

      reincarcerated the following month. Despite being given the opportunity to

      engage in services upon her release, Mother did not successfully complete any

      services and was generally non-compliant. Further, FCM Wingate testified that

      the Children do not know Mother, which caused FCM Wingate concern for

      their emotional well-being during visits with Mother. Once the visits ceased,

      FCM Wingate explained that the Children “finally ha[d] some emotional well-

      being and consistency.” Transcript Vol. 2 at 99. In sum, FCM Wingate

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019   Page 5 of 13
       recommended termination as in the best interests of the Children because

       “Mother has not been compliant when it was available for her to engage and

       she does not have a relationship with the children at this time.” Id. at 100.


[10]   Similarly, the CASA, Erika O’Brien, recommended termination. CASA

       O’Brien had been assigned to the Children since May 2017. She explained her

       recommendation as follows:


               This has been a long road, best described as a roller coaster. I’ve
               had a lot of faith in the proceedings and Dad has been on the
               right track, he was doing a great job and then just fell off. Mom,
               once she got out of jail she was on track, she was doing a great
               job. She then got off track, was incarcerated, we had to restart.
               So, all those things and at this point in the last few months Dad
               has not been involved, neither has Mom. I’ve seen … no change
               or improvement or move towards getting the children at this
               juncture.


       Id. at 118. CASA noted that since her involvement in the case – nearly a year

       and a half at the time – Mother had engaged in services for about a total of sixty

       days. Indeed, Mother acknowledged during her own testimony that her period

       of success with services lasted only “about 60 days.” Id. at 135. Mother

       testified that this success ended in February 2018 after she “admitted to

       smoking spice” while in community corrections. Id. at 134.


[11]   On December 17, 2018, the trial court issued its order terminating the parent-

       child relationship between Mother and the Children. Mother now appeals.

       Additional information will be provided below as needed.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019   Page 6 of 13
                                            Discussion & Decision


[12]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628

       (Ind. 2016). Instead, we consider only the evidence and reasonable inferences

       most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. In deference to the trial court’s unique position to assess

       the evidence, we will set aside its 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. In light of the applicable clear and convincing

       evidence standard, we review to determine whether the evidence clearly and

       convincingly supports the findings and whether the findings clearly and

       convincingly support the judgment. In re R.S., 56 N.E.3d at 628.


[13]   We recognize that 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.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019   Page 7 of 13
[14]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, 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.


                     (iii) The child has, on two (2) separate occasions, been
               adjudicated a child in need of services[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child and that there is a

       satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

       4(b)(2)(C), (D).


[15]   On appeal, Mother asserts that DCS failed to present clear and convincing

       evidence that the conditions resulting in the Children’s removal would not be

       remedied, that the continuation of the parent-child relationship poses a threat to

       the Children’s well-being, and that termination is in the best interests of the

       Children. We will address each of these in turn, as needed.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019   Page 8 of 13
[16]   Mother first contends that DCS failed to present clear and convincing evidence

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

       Children’s removal or continued placement outside the home will not be

       remedied. In deciding whether a reasonable probability exists that conditions

       will not be remedied, the trial 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 J.T., 742 N.E.2d 509, 512 (Ind. Ct. App.

       2001), trans. denied. The court must also evaluate the parent’s habitual patterns

       of conduct to determine whether there is a substantial probability of future

       neglect or deprivation of the children. Id. The court may consider evidence of

       the 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 Cty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App.

       2002), trans. denied. “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.” In re L.S., 717 N.E.2d at 210.


[17]   The record establishes that the reasons for the Children’s removal and

       continued placement outside Mother’s home centered on concerns of substance

       abuse and domestic violence. 3 On a related note, Mother’s unstable lifestyle



       3
        Mother asserts that “DCS failed to elicit any testimony proving the reasons for removal”. Appellant’s Brief at
       11. The reasons for removal, however, are amply established in the exhibits that were admitted at trial
       without objection from Mother.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019                       Page 9 of 13
       and anger issues led to repeated incarcerations. By the conclusion of the

       termination hearing, the Children had been removed from Mother’s care for

       twenty months and she had spent ten of those months incarcerated at various

       times. For the ten months that she was not incarcerated, she participated in

       some services, by her own account, for only about two months.


[18]   The trial court’s detailed findings of fact set out Mother’s history of compliance

       throughout the case, as well as her incarcerations. The court then summarized:


               15. During the CHINS case, Mother demonstrated compliance
               with services for approximately six (6) to (8) weeks. Otherwise
               Mother failed to attend services even when not incarcerated.
               Mother failed to successfully complete any services. Mother was
               last discharged from services on May 30, 2018 for lack of contact
               and compliance.


               16. Mother failed to complete a parenting assessment. Since
               February 2018, Mother has attended only approximately ten (10)
               scheduled visits. In April/May 2018, Mother was scheduled to
               participate in supervised parenting time twice per week.
               However, Mother attended only three (3) scheduled visits on
               April 18, April 20, and April 23, 2018. Mother was incarcerated
               at the time of the next visit scheduled on April 26, 2018. Mother
               attended a scheduled visit on May 22, 2018. Mother’s visits were
               thereafter suspended for failure to engage in random drug
               screening. Mother’s last contact with the children was on May
               22, 2018.


       Appendix Vol. II at 23.


[19]   The evidence and the court’s findings of fact overwhelming establish a

       reasonable probability that the conditions resulting in the Children’s removal

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019   Page 10 of 13
       and continued placement outside Mother’s home will not be remedied. There

       were no changed conditions at the time of the termination hearing, and Mother

       had made no progress in the five months following her most-recent release from

       incarceration in May 2018. Particularly telling of Mother’s lack of commitment

       to do what needed to be done to reunify with the Children was her decision to

       end visits with them rather than submit to drug screens and to cease contact

       with FCM Wingate.


[20]   I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore, having upheld

       the trial court’s conclusion under I.C. § 31-35-2-4(b)(2)(B)(i), we need not

       review the trial court’s determination that continuation of the parent-child

       relationship would pose a threat to the Children’s well-being.


[21]   Finally, Mother asserts that the evidence was insufficient to support the trial

       court’s determination that termination was in the Children’s best interests. In

       making this best-interests determination, the trial court is required to look

       beyond the factors identified by DCS and consider the totality of the evidence.

       In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). The court must

       subordinate the interest of the parent to those of the children and need not wait

       until a child is irreversibly harmed before terminating the parent-child

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

       199 (Ind. Ct. App. 2003). Our Supreme Court has explained that

       “[p]ermanency is a central consideration in determining the best interests of a

       child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have

       previously held that the recommendations of the case manager and court-

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019   Page 11 of 13
       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.”

       In re J.S., 906 N.E.2d at 236.


[22]   Mother’s brief argument regarding the best-interest element is that she loves the

       Children and that, due to her incarcerations, she has not been given the

       opportunity to prove that she can care for them. She also asserts that she and

       the Children are bonded and, thus, it would not be in the Children’s best

       interests to have their relationship with her severed.


[23]   On the contrary, the evidence establishes, and the trial court found, that the

       Children have no bond with Mother. Between May 2017 and October 2018,

       the Children had only visited with Mother about ten times. The lack of visits

       was due to Mother’s multiple incarcerations and her refusal to submit to

       random drug screens. As we have recognized, “[i]ndividuals who pursue

       criminal activity run the risk of being denied the opportunity to develop positive

       and meaningful relationships with their children.” Castro v. State Office of Family

       & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006) (quoting Matter of A.C.B.,

       598 N.E.2d 570, 572 (Ind. Ct. App. 1992)), trans. denied.


[24]   Both the CASA and the FCM recommended termination of Mother’s parental

       rights. Moreover, as the trial court found:


               CASA noted that neither parent has been involved or made any
               steps toward reunification in the past few months. CASA
               reported the children are confused and emotionally troubled by
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019   Page 12 of 13
               inconsistent contact with the parents. The children were
               emotionally impacted by Mother’s absence and Father’s
               inconsistent presence. The children did not demonstrate a bond
               with Mother at all. Since parenting time ceased, the children
               have emotionally stabilized. The children are currently placed
               with foster parents who are willing to adopt the children. The
               children are adoptable even if the current foster family is unable
               to adopt for any reason.


       Appendix Vol. II at 24. The evidence was sufficient to show by clear and

       convincing evidence that termination was in the Children’s best interests.


[25]   Judgment affirmed.


       Kirsch, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019   Page 13 of 13
