MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                           FILED
court except for the purpose of establishing                          Dec 07 2017, 8:01 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Roberta Renbarger                                        Curtis T. Hill, Jr.
Renbarger Law Firm                                       Attorney General of Indiana
Fort Wayne, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 7, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of M.L.A.C. (Child) and M.A.C.                           02A05-1706-JT-01500
(Child) and L.C. (Mother);                               Appeal from the Allen Superior
                                                         Court
                                                         The Honorable Charles F. Pratt,
L.C. (Mother),                                           Judge
Appellant-Defendant,                                     Trial Court Cause Nos.
                                                         02D08-1607-JT-173
        v.                                               02D08-1607-JT-174

Indiana Department of Child
Services,
Appellee-Plaintiff




Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017       Page 1 of 12
      May, Judge.


[1]   L.C. (“Mother”) appeals the involuntary termination of her parental rights to

      M.L.A.C. and M.A.C. (collectively, “Children”). Mother argues the trial

      court’s findings do not support its conclusions that the conditions under which

      Children were removed from her care would not be remedied and that

      termination was in Children’s best interests. 1 We affirm.



                                Facts and Procedural History
[2]   Mother 2 gave birth to M.L.A.C. and M.A.C. on January 28, 2012, and January

      3, 2014, respectively. On September 26, 2014, Children were removed from

      Mother’s care because of domestic violence, Mother’s drug use, and Mother’s

      choice to allow Children’s maternal grandmother to babysit Children despite

      maternal grandmother’s drug use. The Department of Child Services (“DCS”)

      filed petitions to adjudicate each of Children as a Child in Need of Services

      (“CHINS”) the same day and filed amended petitions on October 20, 2014.

      The trial court held an initial hearing on the matter on October 22, 2014.


[3]   On January 27, 2015, Mother admitted Children were CHINS and the trial

      court adjudicated them as CHINS. The trial court also held a dispositional




      1
        Mother also asserts the evidence was insufficient to support the court’s conclusion that the continuation of
      the parent-child relationships posed a threat to the children’s well-being. We need not, however, address that
      argument. See infra n.4.
      2
          M.L.A.C.’s father is C.L., and he does not participate in this appeal. M.A.C.’s father is unknown.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017           Page 2 of 12
      hearing and issued a parent participation plan for Mother. As a part of that

      plan, the trial court ordered Mother to, among other things: refrain from

      criminal activity; maintain clean, safe, and sustainable housing at all times;

      notify DCS of any changes in contact information within forty-eight hours of

      the changes; cooperate with caseworkers and the Guardian ad litem (“GAL”);

      enroll in home-based services; obtain a psychological evaluation and follow the

      recommendations; enroll in non-violence counseling; refrain from using illegal

      substances and alcohol; and submit to random drug screens.


[4]   On March 26, 2015, the trial court held a review hearing and found Mother was

      “demonstrating an ability to benefit from services” and placed Children back in

      Mother’s care. (App. Vol. II at 17.) In late June 2015, Mother called the family

      who had fostered M.L.A.C. as part of an earlier CHINS case and asked them to

      take care of Children while Mother went out of state. Mother did not return to

      retrieve Children, and DCS officially removed Children from Mother’s care in

      early July 2015, and Children have been with the foster family since that time.


[5]   On September 17, 2015, the trial court held a permanency hearing and received

      evidence Mother had not participated in services or non-violence counseling,

      maintained suitable housing, or visited with Children since they were removed

      from her care in July 2015. In addition, Mother tested positive for illegal

      substances. The trial court changed the permanency plan for Children to

      termination of parental rights and ordered Mother’s visits with Children to be

      supervised.



      Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017   Page 3 of 12
[6]   The trial court held review hearings on March 9, 2016, and August 31, 2016,

      and reaffirmed the permanency plan of termination on August 31, 2016. DCS

      filed a petition to terminate Mother’s parental rights to Children on September

      15, 2016. The trial court held an evidentiary hearing on the matter on February

      13, 2017. Mother appeared telephonically because she was incarcerated in the

      Adams County Jail. The trial court continued the hearing to March 6, 2017, so

      Mother could be present, and she was physically present to testify on March 6.

      On May 30, 2017, the trial court issued orders terminating Mother’s parental

      rights to Children.



                                 Discussion and Decision
[7]   We review termination of parental rights with great deference. In re K.S., D.S.,

      & B.G., 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

      juvenile court’s unique position to assess the evidence, we will set aside a

      judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      534 U.S. 1161 (2002).


[8]   “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

      Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017   Page 4 of 12
      subordinate the interests of the parents to those of the children, 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 children should not be terminated solely

      because there is a better home available for the children, id., but parental rights

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

      responsibilities. Id. at 836.


[9]   To terminate a parent-child relationship, the State must allege and prove:


              (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 provide clear and convincing proof

      of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

      Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017   Page 5 of 12
       denied. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[10]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. 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 juvenile court’s

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


[11]   Mother challenges the court’s conclusions the conditions under which Children

       were removed would not be remedied, the continuation of the parent-child

       relationship posed a risk to Children, and termination was in the best interests

       of Children. Mother does not challenge any specific findings of fact, and

       therefore we accept the trial court’s findings as true. See Madlem v. Arko, 592

       N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings

       of the trial court, they must be accepted as correct.”). Thus, we move to the

       second part of the analysis - whether the findings support the trial court’s

       judgment.


                   Reasonable Probability Conditions Would Not Be Remedied

[12]   A trial court must judge a parent’s fitness to care for a child at the time of the

       termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

       Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017   Page 6 of 12
       Evidence of a parent’s pattern of unwillingness or lack of commitment to

       address parenting issues and to cooperate with services “demonstrates the

       requisite reasonable probability” that the conditions will not change. Lang v.

       Starke Cnty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.


[13]   When assessing a parent’s fitness to care for a child, the trial court should view

       the parent as of the time of the termination hearing and take into account the

       changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,

       854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also

       “evaluat[e] the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d

       509, 512 (Ind. Ct. App. 2001), trans. denied.


[14]   Here, regarding whether the conditions under which Children were removed

       from Mother’s care would be remedied, the trial court found:


               10. A Permanency Hearing was held on September 17, 2015,
               and a Permanency Plan for the termination of parental rights was
               adopted by the court. In support thereof the Court found that the
               mother had not visited the children, had tested positive for illegal
               drugs, and had not maintained safe housing.


                                                    *****


               13. The Mother’s parental rights to another child were
               involuntarily terminated on or about January 14, 2011.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017   Page 7 of 12
        14. At the time of the final Factfinding hearing the mother was
        incarcerated in the Adams County, Indiana Jail where she had
        been since December 21, 2016. She is charged with intimidation.


        15. From the testimony of Art Hastings, an employee with Park
        Center, Inc. the Court finds that he completed an intake session
        with the Mother in December, 2015. Based on the intake
        assessment the mother was referred for supervised visitations.
        He found the mother to be argumentative and at the second visit
        she was asked to leave. Due to lack of subsequent contact the
        referral was closed in the fall of 2016.


        16. The mother was referred by the Department for counseling
        for domestic violence to Crime Victims Care. Owing to an
        inability to contact the mother, the referral was closed.


        17. From the testimony of Department case worker Beverly
        Marcus, the Court finds that the mother did not successfully
        complete home based services. Except for two occasions, the
        mother has not visited her children since July 2015.


(App. Vol. II at 17) (formatting in original). Based on those findings, the trial

court concluded:


        By the clear and convincing evidence the court determines that
        there is reasonable probability that reasons that brought about the
        children’s placements outside the home will not be remedied. . . .
        The mother has not completed anger management counseling
        and has not maintained regular contact with the Department.
        For the past several months she has not visited her children.


(Id. at 18.)



Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017   Page 8 of 12
[15]   Mother argues she


                [i]s not a perfect person and not a perfect mother. She
                participated in many services and secured the return of her
                children from March 19, 2015, to July, 2015. When [Mother]
                lost her housing she turned to her support system, the foster
                parents for her children. She returned the children to the foster
                parents, rather than leaving the area with her children. She made
                the correct decision for the safety of her children.


       (Br. of Appellant at 19.) She also notes that, while she had not completed non-

       violence counseling, “she had participated regularly after the children were

       removed and until their return to her on March 19, 2015.” (Id.) Based thereon,

       Mother asserts the reasons Children were removed from her care have been

       resolved. Her arguments are invitations for us to reweigh the evidence, which

       we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court does not

       reweigh evidence or judge the credibility of witnesses). The trial court’s

       findings support its conclusion that the conditions under which Children were

       removed from Mother’s care would not be remedied. 3 See, e.g., In re E.M., 4

       N.E.3d 636, 644 (Ind. 2014) (findings regarding Father’s continued non-




       3
         The trial court found the conditions under which Children were removed would not be remedied and the
       continuation of the parent-child relationship posed a threat to Children. DCS does not have to prove both
       because the statute is written in the disjunctive, such that DCS must prove either by clear and convincing
       evidence. See Ind. Code § 31-35-2-4(b)(2)(B). Because the findings support the conclusion there was a
       reasonable probability conditions leading to Children’s removal would not be remedied, we need not address
       whether the findings also support a conclusion that the continuation of the parent-child relationship posed a
       threat to Children’s well-being. See In re L.S. 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), reh’d denied, trans.
       denied, cert. denied 534 U.S. 1161 (2002) (because section 31-35-2-4 (6)(2)(B) is written in the disjunctive, court
       needs to find only one requirement to terminate parental rights).

       Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017              Page 9 of 12
       compliance with services supported trial court’s conclusion the conditions

       under which children were removed from parents’ care would not be remedied).


                                          Best Interests of Children

[16]   In determining what is in children’s best interests, the juvenile court is required

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

       evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.

       A parent’s historical inability to provide a suitable environment, along with the

       parent’s current inability to do so, supports finding termination of parental

       rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990

       (Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-

       appointed advocate to terminate parental rights, in addition to evidence that

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

       clear and convincing evidence that termination is in the children’s best interests.

       In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[17]   Regarding the best interests of Children, the trial court found:


               18. . . . The current foster mother has expressed her interest in
               adopting the children.


               19. The child’s [sic] Guardian ad Litem has also concluded that
               the children’s best interests are served by the termination of
               parental rights. In support of his conclusion he cites the parents’
               lack of compliance with services. The mother, he believes [sic] is
               in need of anger management counseling and is unstable and
               poses a threat to the children. The mother is without adequate
               housing for the children.


       Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017   Page 10 of 12
       (App. Vol. II at 18.) Based on those findings, the trial court concluded:


               In this case the Guardian ad Litem has concluded that
               termination of parental rights is in the children’s best interests.
               The children need a safe [sic] stable and nurturing home
               environment. The foster mother with whom the children are
               now bonded has advised of her intent to adopt should parental
               rights be terminated. The Court concludes the best interests of
               the children are served by terminating parental rights.


       (Id.)


[18]   Mother makes no specific argument why termination is not in the best interests

       of Children; she just asserts termination is not in Children’s best interests. To

       the extent she makes an argument, she is asking us to reweigh the evidence,

       which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court does not

       reweigh evidence or judge the credibility of witnesses). We therefore conclude

       the trial court’s findings support its conclusion that termination was in

       Children’s best interests. See, e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App.

       2005) (trial court’s findings based on testimony of service providers coupled

       with evidence that conditions resulting in placement outside the home would

       not be remedied supported trial court’s conclusion termination was in child’s

       best interest), trans. denied.



                                               Conclusion



       Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017   Page 11 of 12
[19]   The trial court’s findings supported its conclusions the conditions under which

       Children were removed from Mother’s care would not be remedied and

       termination was in Children’s best interests. Accordingly, we affirm.


[20]   Affirmed.


       Vaidik, C J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1706-JT-01500 | December 7, 2017   Page 12 of 12
