MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                         Jul 08 2019, 10:54 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
Jennifer L. Schrontz                                      Curtis T. Hill, Jr.
Schrontz Legal Group, LLC                                 Attorney General
Lafayette, Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          July 8, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of R.W. (Minor                               19A-JT-229
Child)                                                    Appeal from the Tippecanoe
and                                                       Superior Court
                                                          The Honorable Faith A. Graham,
                                                          Judge
B.W. (Mother),                                            Trial Court Cause No.
Appellant-Respondent,                                     79D03-1807-JT-114

        v.

Indiana Department of Child
Services,
Appellee-Petitioner



Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019                            Page 1 of 14
      Crone, Judge.


                                                 Case Summary
[1]   B.W. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental rights to her minor child, R.W. (“Child”). We affirm.


                                     Facts and Procedural History
[2]   Child was born on June 24, 2017, to Mother.1 Mother has a lengthy criminal

      history, and, although not incarcerated at the time of Child’s birth, she had

      been arrested and posted bond just weeks before on charges of possession of

      paraphernalia, possession of methamphetamine, and forgery. On June 28,

      2017, Child was removed from Mother’s care and placed in protective custody

      due to allegations of Mother’s drug use during her pregnancy. Child suffered

      from withdrawal symptoms at birth, and both Mother and Child tested positive

      for amphetamine and methamphetamine. Thereafter, the Indiana Department

      of Child Services (“DCS”) filed a child in need of services (“CHINS”) petition

      regarding Child.2 Mother admitted the allegations in the CHINS petition, and,

      following a combined detention and initial hearing, the court continued the

      order for removal and ordered that Child remain in foster care. 3 The court



      1
        A.R., the alleged father, failed to appear at the trial level despite proper notice. The trial court heard
      evidence and entered a default judgment against him terminating his parental rights. He does not participate
      in this appeal.
      2
        Mother has a history of prior contacts with DCS as early as 2012 regarding an older daughter, J.A.O., due
      to Mother’s drug use, her extensive criminal history, and ongoing domestic violence between Mother and a
      boyfriend. Mother retains her parental rights to J.A.O., but J.A.O. is placed with her maternal grandparents.
      3
          The record indicates that Child’s maternal grandparents declined placement of Child.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019                      Page 2 of 14
      ordered Mother to submit to random drug screens and further ordered that she

      not be permitted to visit Child until she tested negative for methamphetamines.

      Referrals were made for Mother to participate in assessments and services.

      DCS found Mother difficult to contact, and she failed to complete any

      assessments or participate in any services.


[3]   Mother was incarcerated in July 2017. Shortly thereafter, she was transferred

      to a work release program. While in custody, in December 2017, Mother

      completed a substance abuse assessment and mental health evaluation. She has

      been diagnosed with alcohol dependence. She reported a long history of

      substance abuse including alcohol, cannabis, cocaine, and ecstasy. She further

      reported that she had participated in intensive outpatient substance abuse

      treatment in 2013. Mother was diagnosed with generalized anxiety disorder,

      major depressive disorder, and other stimulant dependence. She disclosed that

      she continued to abuse alcohol, cannabis, and cocaine, and she further

      disclosed that she had used methamphetamine daily over the past five years.


[4]   In August 2017, the trial court adjudicated Child a CHINS due to Mother’s

      admitted drug use and issued interim orders for Mother to participate in

      services. A dispositional decree was entered in September 2017, ordering that

      Mother participate in services while in work release with the plan being

      reunification with Child. Mother failed to participate in services before or

      during her time in work release, and then she violated the conditions of work

      release in January 2018 by severing the strap on her ankle monitor. Mother was



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019   Page 3 of 14
      arrested and incarcerated in February 2018. At the time of her arrest, she was

      found in possession of methamphetamine and buprenorphine.


[5]   In June 2018, Mother was convicted of level 6 felony possession of

      methamphetamine, level 6 felony theft, and level 6 felony escape. She was also

      found to be a habitual offender. The trial court sentenced her to eight years,

      with two years suspended to probation. Mother was also sentenced on a

      probation violation. She was transferred to the Indiana Women’s Prison on

      August 17, 2018. Since her arrival at the prison, Mother commenced and

      completed a parenting class, as well as participated in a culinary arts program

      and other self-help curricula involving methamphetamine addiction, anger

      management, overcoming anxiety, and developing effective communication.

      Mother’s earliest possible release date is December 27, 2019; however, she has

      already received two conduct reports while incarcerated. Mother has had no

      contact with Child since Child’s birth.


[6]   In August 2018, DCS filed a petition to involuntarily terminate Mother’s

      parental rights. After the termination hearing held on November 13, 2018, the

      trial court entered extensive findings of fact, one of which contained the

      following relevant summary:


              There have been repeated concerns regarding Mother’s lack of
              stability, criminal activity, drug use, and domestic violence
              relationships with multiple DCS assessments. These issues have
              extended over several years and have now spanned the lives of
              both Mother’s children. Mother’s recent participation in services
              in prison does not outweigh Mother’s lengthy history of failing to
              address these same issues before, during, and after the first
      Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019   Page 4 of 14
              CHINS case or before incarceration and while on Work Release
              in the second CHINS case. Mother has displayed a long-term
              pattern of failing to comply with terms of sentencing and/or
              probation having been convicted of Escape on three (3)
              occasions. Mother has demonstrated little to no regard for the
              impact this continuous instability has on her children.


      Appellant’s App. Vol. 2 at 20.


[7]   Accordingly, the trial court concluded that: (1) there is a reasonable probability

      that the conditions that resulted in Child’s removal and continued placement

      outside the home will not be remedied by Mother; (2) there is a reasonable

      probability that continuation of the parent-child relationship between Mother

      and Child poses a threat to Child’s well-being; (3) termination of the parent-

      child relationship between Mother and Child is in Child’s best interests; and (4)

      DCS has a satisfactory plan for Child’s care and treatment, which is adoption.

      Accordingly, the trial court determined that DCS had proven the allegations of

      the petition to terminate by clear and convincing evidence and therefore

      terminated Mother’s parental rights. Mother now appeals.


                                      Discussion and Decision
[8]   “The purpose of terminating parental rights is not to punish the parents but,

      instead, to protect their children. Thus, although parental rights are of a

      constitutional dimension, the law provides for the termination of these rights

      when the parents are unable or unwilling to meet their parental

      responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

      omitted). “[T]ermination is intended as a last resort, available only when all

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019   Page 5 of 14
      other reasonable efforts have failed.” Id. A petition for the involuntary

      termination of parental rights must allege in pertinent part:


          (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). DCS must prove that termination is appropriate by

      a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144

      (Ind. 2016). If the trial court finds that the allegations in a petition are true, the

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


[9]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019   Page 6 of 14
                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.


       Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

       do not support the trial court’s conclusions or the conclusions do not support

       the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


           Section 1 – Clear and convincing evidence supports the trial
            court’s conclusion that there is reasonable probability of
                              unchanged conditions.
[10]   Mother first challenges the trial court’s conclusion that there is a reasonable

       probability that the conditions that resulted in Child’s removal from and

       continued placement outside the home will not be remedied. 4 In determining

       whether there is a reasonable probability that the conditions that led to Child’s

       removal and continued placement outside the home will not be remedied, we

       engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1231 (Ind. 2013). First, “we must ascertain what conditions led to [her]




       4
        Mother also challenges the trial court’s conclusion that there is a reasonable probability that the
       continuation of the parent-child relationship poses a threat to Child’s well-being. However, Indiana Code
       Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination of
       parental rights, the trial court need only find that one of the three requirements of that subsection has been
       established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
       Ct. App. 2013), trans. denied. Accordingly, we will address only one of the three requirements.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019                        Page 7 of 14
       placement and retention in foster care.” Id. Second, “we ‘determine whether

       there is a reasonable probability that those conditions will not be remedied.’”

       Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010) (citing In re A.A.C.,

       682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second step, the trial court

       must judge a parent’s fitness at the time of the termination proceeding, taking

       into consideration evidence of changed conditions, and balancing a parent’s

       recent improvements against “habitual pattern[s] of 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) (quoting K.T.K., 989 N.E.2d at 1231). “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 Cty. Office of Family & Children, 861 N.E.2d 366, 372

       (Ind. Ct. App. 2007) (citation omitted), trans. denied. The evidence presented by

       DCS “need not rule out all possibilities of change; rather, DCS need establish

       only that there is a reasonable probability that the parent’s behavior will not

       change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).


[11]   Here, Child was initially removed from Mother’s care after DCS received

       reports that Mother was using methamphetamines while pregnant, Mother

       tested positive for drugs upon admittance to the hospital, and Child displayed

       signs of withdrawal at birth. Mother was not incarcerated at the time, but

       shortly after Child’s birth, Mother became incarcerated and was transferred to a

       work release program. Although Mother had a substantial prior history with


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019   Page 8 of 14
       DCS involving her older daughter during which she failed to participate in

       offered services, DCS put numerous new services in place regarding Child that

       Mother could have participated in while in work release. Mother failed to

       complete any services and instead chose to violate work release and was again

       incarcerated. At the time of her latest arrest, Mother was found in possession of

       methamphetamine and buprenorphine.


[12]   Mother asserts that she is currently sober (while incarcerated) and that the

       record reveals that she has completed some services while in custody, including

       completing a parenting class and participating in a culinary arts program.

       Accordingly, Mother essentially argues that the evidence of her good faith

       efforts at improvement coupled with her impending 2019 release date support a

       conclusion that there is a reasonable probability that conditions will change

       upon her release from incarceration. See, e.g., K.E. v. Ind. Dep’t of Child Servs., 39

       N.E.3d 641, 647 (Ind. 2015) (finding evidence insufficient to support trial

       court’s conclusion that incarcerated Father would be unable to remedy

       conditions for removal; trial court failed to balance Father’s recent

       improvements against his habitual patterns of conduct; Father had made

       substantial efforts toward bettering his life though programs available during his

       incarceration, including establishing regular visitation with minor children).


[13]   We do not discount Mother’s recent efforts, and, contrary to her assertions,

       neither did the trial court. The trial court did not ignore Mother’s recent efforts

       and did not look simply to Mother’s incarceration and her inability to currently

       parent Child. Rather, the trial court considered Mother’s prior numerous

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019   Page 9 of 14
       contacts with DCS, as well as her lengthy and extensive criminal history, and

       determined that Mother’s past behavior was more indicative of her future

       behavior than her minimal recent improvements while incarcerated. “We

       entrust th[is] delicate balance to the trial court, which has discretion to weigh a

       parent’s prior history more heavily than efforts made only shortly before

       termination.” E.M., 4 N.E.3d at 643. Although trial courts are required to give

       due regard to changed conditions, this does not preclude them from finding that

       a parent’s past behavior is the best predictor of their future behavior. Id.


[14]   There is ample evidence that Mother began choosing criminal activity and drug

       use over the needs of her older daughter as early as 2012. Despite numerous

       opportunities over the last several years to alter her behavior and to cooperate

       with those providing social services, Mother chose to continue her negative

       behavior even after the birth of Child and a second CHINS case. Again,

       Mother’s efforts while incarcerated, while commendable, were not substantial

       when compared with her habitual patterns of conduct. Under the

       circumstances, the trial court was well within its discretion in determining that

       there is a substantial probability of future neglect or deprivation based upon

       Mother’s long-term pattern of behavior. The trial court’s conclusion that there

       is a reasonable probability that the conditions that led to Child’s removal and

       continued placement outside the home will not be remedied is supported by

       clear and convincing evidence.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019   Page 10 of 14
         Section 2 – Clear and convincing evidence supports the trial
          court’s conclusion that termination of Mother’s parental
                      rights is in Child’s best interests.
[15]   Mother next challenges the trial court’s conclusion that termination of her

       parental rights is in Child’s best interests. In considering whether termination

       of parental rights is in the best interests of a child, the trial court is required to

       look beyond the factors identified by DCS and look to the totality of the

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

       203 (Ind. Ct. App. 2003). In doing so, the trial court must subordinate the

       interests of the parent to those of the child involved. Id. The trial court need not

       wait until the child is irreversibly harmed before terminating parental rights. Id.

       “[T]he historic inability to provide adequate housing, stability, and supervision,

       coupled with the current inability to provide the same, will support a finding

       that continuation of the parent-child relationship is contrary to the child’s best

       interests.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). The testimony

       of service providers may support a finding that termination is in the child’s best

       interests. McBride, 798 N.E.2d at 203.


[16]   The original DCS family case manager, Christopher LaMar, opined that

       termination of Mother’s parental rights is in Child’s best interests. He noted

       that Mother failed to engage in any services prior to her incarceration while he

       was on the case. Similarly, the more recent DCS family case manager,

       Kourtney Wheeler, also opined that termination of Mother’s parental rights

       was in Child’s best interests because Child needs permanency. Wheeler noted


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019   Page 11 of 14
       that Child had been in foster care her entire life and that Mother will continue

       to be incarcerated until at least the end of 2019. She emphasized that Mother

       and Child have zero bond because Mother has had no contact with Child since

       birth due to her drug use and continued criminal behavior.


[17]   Court Appointed Special Advocate Brenda Parker also testified that she

       believed the best interests of Child would be served by termination of Mother’s

       parental rights. Parker opined that Mother had not remedied the conditions

       that led to Child’s placement outside of her care and that continuation of the

       parent-child relationship posed a threat to Child’s well-being. Parker noted

       Mother’s history with DCS and her long-term abuse of methamphetamine.

       Parker stated that Child “has been out of the home five hundred and six days.

       She has been with her foster parents five hundred and four days … that is all

       she knows as her family and as her parents.” Tr. Vol. 2 at 58. Parker stated

       that Child had overcome “so many obstacles that she started out with” and was

       thriving in the care of her foster parents. Id. at 53. Parker was confident that

       adoption by Child’s current foster family would be best for Child.


[18]   As our supreme court has often stated, “children have an interest in terminating

       parental rights that prevent adoption and inhibit establishing secure, stable,

       long-term, continuous relationships.” K.T.K., 989 N.E.2d at 1230 (quoting In re

       C.G., 954 N.E.2d 910, 917 (Ind. 2011)). Clear and convincing evidence

       supports the trial court’s conclusion that termination of Mother’s rights is in

       Child’s best interests.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019   Page 12 of 14
        Section 3 – Clear and convincing evidence supports the trial
        court’s conclusion that adoption is a satisfactory plan for the
                        care and treatment of Child.
[19]   Finally, Mother challenges the trial court’s conclusion that there is a

       satisfactory plan for the care and treatment of Child. While the trial court must

       find that there is a satisfactory plan for the care and treatment of the child,

       “[t]his plan need not be detailed, so long as it offers a general sense of the

       direction in which the child will be going after the parent-child relationship is

       terminated.” In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008).

       Generally, adoption is a satisfactory plan. Id.


[20]   It is clear from the trial court’s findings that the permanency plan here is for

       Child to be adopted by her current foster family or by another adoptive family if

       the current foster family is unable to adopt for any reason. Thus, there is clearly

       a general sense of direction in which Child will be going after the parent-child

       relationship is terminated. The lion’s share of Mother’s argument against this

       plan is simply that the trial court should have given more consideration to

       “alternative options” to termination of parental rights such as “guardianship or

       third-party custody” with Child’s maternal grandparents, as has been done with

       Mother’s older daughter. Appellant’s Br. at 34. However, the trial court

       specifically considered these options, but ultimately rejected them in favor of

       termination, and we must defer to the trial court’s weighing of the evidence




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019   Page 13 of 14
       here.5 Clear and convincing evidence supports the trial court’s conclusion that

       adoption is a satisfactory plan for the care and treatment of Child.


[21]   Decisions to terminate parental rights “are among the most difficult our trial

       courts are called upon to make” and are very fact sensitive. E.M., 4 N.E.3d at

       640. We will reverse a termination of parental rights only upon a showing of

       “clear error” – that which leaves us with a definite and firm conviction that a

       mistake has been made. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997).

       Based on the record before us, we cannot say that the trial court’s termination

       of Mother’s parental rights to Child was clearly erroneous. Accordingly, the

       trial court’s termination order is affirmed.


[22]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       5
        The trial court made detailed findings supporting its decision not to place Child with her maternal
       grandparents. Namely, the maternal grandparents adamantly declined placement of Child at the outset of the
       CHINS case and then, after later expressing some interest in placement, canceled multiple scheduled visits.
       Moreover, service providers noted that the maternal grandparents, especially maternal grandmother,
       exhibited little engagement with Child even during visits they attended.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-229 | July 8, 2019                   Page 14 of 14
