MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any
                                                                                  Oct 05 2020, 8:18 am
court except for the purpose of establishing
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
Dorothy Ferguson                                          Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          Robert J. Henke
                                                          Abigail Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

K. L.,                                                    October 5, 2020
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          20A-JT-828
         v.                                               Appeal from the Madison Circuit
                                                          Court
Madison County Department of                              The Honorable G. George Pancol,
Child Services,                                           Judge
Appellee-Petitioner.                                      Trial Court Cause No.
                                                          48C02-1910-JT-264



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020          Page 1 of 15
                                 STATEMENT OF THE CASE
[1]   Appellant-Respondent, K.L. (Mother), appeals the trial court’s Order

      terminating her parental rights to her minor child, R.R. (Child).


[2]   We affirm.


                                                      ISSUE
[3]   Mother presents the court with one issue, which we restate as: Whether the

      trial court’s Order terminating her parental rights to Child is clearly erroneous.


                       FACTS AND PROCEDURAL HISTORY
[4]   On June 25, 2013, Child was born to Mother and biological father, T.R.

      (Father). 1 Mother and Father have a history of substance abuse. On January 6,

      2017, Mother and Father possessed syringes and admitted to

      methamphetamine use. Due to Parents’ arrest, on January 12, 2017, the

      Department of Child Services (DCS) removed Child from their care, and Child

      was placed in a relative’s care.


[5]   On January 17, 2017, DCS filed a petition alleging that Child was a child in

      need of services (CHINS) because of Mother’s substance abuse issues. On

      January 25, 2017, Mother admitted that Child was a CHINS. On February 22,

      2017, the trial court ordered Mother to complete a substance abuse assessment




      1
        On July 25, 2019, Father’s parental rights to R.R. were terminated in a prior proceeding. T.R. does not
      participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020                  Page 2 of 15
      and treatment, random drug screens, a parenting assessment and any

      recommended classes, individual counseling, and supervised parenting time.

      Mother was also ordered to refrain from consuming illegal substances. On

      March 17, 2017, DCS filed a motion to remove Child from his placement with

      relatives because Child had been left unsupervised in Mother’s care. Child was

      placed in foster care, where he has resided ever since.


[6]   Mother’s January 6, 2017, arrest led to the State filing charges against her of

      Level 6 felony unlawful possession of a syringe, Level 6 felony maintaining a

      common nuisance, Class C misdemeanor possession of paraphernalia, and

      Class C misdemeanor operating a motor vehicle without ever receiving a

      license under Cause Number 48C05-1703-F6-602 (Cause -602). While Cause -

      602 was pending, on April 25, 2017, Mother was charged in Cause Number

      48C05-1704-F4-1043 (Cause -1043) with Level 6 felony assisting a criminal

      when she refused to answer her door when police arrived to serve a warrant on

      Father. On February 26, 2018, Mother pleaded guilty to the maintaining a

      common nuisance and operating a vehicle while never being licensed charges in

      Cause -604 and to the assisting a criminal charge in Cause -1043. The trial

      court sentenced Mother to two years and 182 days in Cause -602 and to 363

      days in Cause -1043, all suspended to probation.


[7]   As Mother’s criminal cases were unfolding, DCS referred Mother for substance

      abuse assessments and treatment. At the beginning of the CHINS case, Mother

      completed a substance abuse assessment and did not test positive for illegal

      substances for approximately eight months while she was being treated with

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 3 of 15
      suboxone. Thereafter, Mother did not comply consistently with random drug

      screening. Mother was drug screened by DCS throughout the instant case and

      the underlying CHINS proceedings. From November 16, 2017, to November

      7, 2019, Mother tested positive for illegal substances, mostly methamphetamine

      and amphetamine, on twenty occasions. In 2018, Mother checked herself out

      of in-patient substance abuse treatment at Transitions in Fort Wayne after one

      week. After Mother voluntarily left in-patient treatment, she requested that

      random drug screening be reinstated but then never participated. Mother

      completed a second substance abuse assessment but did not follow up on the

      resulting treatment recommendations. During the CHINS proceedings Mother

      was closed out of individual therapy for noncompliance.


[8]   DCS also referred Mother for home-based case management to address her

      housing instability and unemployment issues. After a permanency hearing on

      December 27, 2017, the trial court found that Mother had not yet begun her

      home-based services, despite referrals being in place. Once beginning her

      home-based services, Mother did not participate consistently. As of January 14,

      2019, Mother had been closed out of her home-based services for non-

      compliance. Mother did not gain consistent employment. Mother had at least

      three residences during the CHINS proceedings, one of which was with her

      boyfriend, who she admitted to FCM Andrea Dickerson (FCM Dickerson) on

      several occasions had inflicted domestic violence upon her. As of January 14,

      2019, Mother had been evicted from her HUD housing for a rule violation.




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 4 of 15
[9]    Mother did not complete a parenting assessment even though DCS entered a

       referral for one. After an initial period of non-attendance, Mother exercised

       regular parenting time with Child and completed a “1, 2, 3 Magic” training.

       (Transcript p. 49). DCS increased the frequency of Mother’s parenting time,

       and Mother was allowed to exercise her parenting time in her home. However,

       parenting time was decreased and eventually moved back to a facility due to

       Mother’s continued positive drug screens and Mother becoming overwhelmed

       and emotional during sessions. The move back to a facility occurred after an

       episode where Mother had an emotional outburst and told Child that his

       behavior was the reason that he could not come home. In March 2019,

       Mother’s supervised parenting time was closed out for non-attendance,

       although it was later reinstated.


[10]   Mother was arrested on several occasions during the CHINS proceedings for

       violating her probation by abusing illegal substances. On December 27, 2017, a

       concurrent plan of adoption was added to Child’s permanency plan. On

       October 25, 2019, DCS filed a petition seeking to terminate Mother’s parental

       rights to Child. In November 2019, Mother was re-incarcerated for violating

       her probation. Just prior to becoming re-incarcerated, Mother reported

       participating in services again and completing an extended-outpatient, group-

       therapy program (EOP), despite her spotty attendance. Mother did not

       complete the individual therapy portion of her treatment before becoming re-

       incarcerated.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 5 of 15
[11]   January 7, 2020, and February 25, 2020, the trial court held evidentiary

       hearings on DCS’s termination petition. FCM Robert Barnes (FCM Barnes)

       testified that Mother had admitted to him after her last positive drug screen on

       November 7, 2019, that she continued to use methamphetamine. FCM

       Dickerson related that Mother had abducted Child from a prior placement and

       had threatened to do so again. It was FCM Dickerson’s opinion that it was in

       Child’s best interests that Mother’s parental rights be terminated.


[12]   By the time of the second termination hearing, Mother had recently been

       released from having spent three months in jail. Mother was initially released

       to serve six months on house arrest but had been noncompliant with the house

       arrest rules and was placed on work release. Mother had completed the “No

       More Excuses” substance abuse program while in jail and was attending

       twelve-step and Celebrate Recovery groups. (Tr. p. 78). Mother acknowledged

       that her recent three-month period of abstinence from substance abuse had

       occurred while she had been incarcerated. Mother requested more time to

       engage in services before her parental rights were terminated.


[13]   Child had been placed with the same foster family since February 20, 2018. By

       the time of the termination hearings, Child no longer required any services

       through DCS and had discontinued therapy in fall 2019. Child’s foster father

       related that he and Child’s foster mother were able to provide for Child’s needs.

       Child has two foster sisters in his home. Child’s foster family sought to adopt

       Child and had already filed a petition to do so.



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 6 of 15
[14]   Child’s CASA, Stephanie Hamilton (CASA Hamilton), served during the

       CHINS and termination proceedings. CASA Hamilton recognized that Mother

       loved Child but that Mother had been unable to address her substance abuse

       issues and provide Child with a stable environment. After interacting with

       Mother throughout the proceedings, CASA Hamilton had concluded that

       Mother’s intentions were good but that she could not follow through with

       treatment or services for extended periods of time. Mother had not exercised

       parenting time with Child in the months prior to the termination hearing.

       CASA Hamilton noted that after this period of Mother’s absence, “there is a

       light in [Child’s] eyes that I haven’t seen previously.” (Tr. p. 64). CASA

       Hamilton had inspected Child’s foster home and found it suitable and

       appropriate for Child. CASA Hamilton believed that it was in Child’s best

       interests that Mother’s parental rights be terminated.


[15]   On February 25, 2020, in a separate proceeding, Mother admitted that she had

       violated her probation in Cause -1043, and the trial court revoked her probation

       to 231 days in the Continuum of Sanctions program.


[16]   On March 11, 2020, the trial court issued its Order terminating Mother’s rights

       to Child. In its eleven-page Order, the trial court entered findings consistent

       with the facts recited herein. The trial court concluded that there was no

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

       Mother would be remedied and that it was in Child’s best interests that

       Mother’s parental rights be terminated.



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 7 of 15
[17]   Mother now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                              I. Standard of Review

[18]   Mother challenges the evidence supporting the trial court’s Order terminating

       her rights to Child. It is well-settled that when reviewing the evidence

       supporting the termination of parental rights, we neither reweigh the evidence

       nor determine the credibility of witnesses. In re E.M., 

4 N.E.3d 636

, 642 (Ind.

       2014). In addition, we consider only the evidence that supports the judgment

       and the reasonable inferences to be drawn from that evidence.

Id. “We confine our

review to two steps: whether the evidence clearly and convincingly

       supports the findings, and then whether the findings clearly and convincingly

       support the judgment.”

Id. We must give

due regard to the trial court’s

       opportunity to judge the credibility of witnesses firsthand, and we do not set

       aside the trial court’s findings or judgment unless it is clearly erroneous.

Id. Mother does not

challenge any of the trial court’s specific findings of fact, so we

       will accept those findings as correct. S.S., 

120 N.E.3d 605

, 610 (Ind. Ct. App.

       2019).


                                      II. Termination of Mother’s Rights

[19]   “[O]ne of the most valued relationships in our culture” is that between a parent

       and his or her child. In re G.Y., 

904 N.E.2d 1257

, 1259 (Ind. 2009), reh’g denied.

       Indeed, “[a] parent’s interest in the care, custody, and control of his or her

       children is ‘perhaps the oldest of the fundamental liberty interests.’”

Id. Court of Appeals

of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 8 of 15
       (quoting Troxel v. Granville, 

530 U.S. 57

, 65 (2000)). Accordingly, the

       Fourteenth Amendment to the United States Constitution safeguards “the

       traditional right of parents to establish a home and raise their children.”

Id. Nevertheless, parental interests

are not absolute; rather, termination of parental

       rights is appropriate when parents are unable or unwilling to meet their parental

       responsibilities. In re A.B., 

887 N.E.2d 158

, 164 (Ind. Ct. App. 2008).


[20]   Termination of parental rights is an extreme sanction that is intended as a “last

       resort” and is available only when all other reasonable efforts have failed. C.A.

       v. Ind. Dep’t of Child Servs., 

15 N.E.3d 85

, 91 (Ind. Ct. App. 2014). As such,

       before a termination of parental rights is merited, the State is required to prove

       a host of facts by clear and convincing evidence, the most relevant for our

       purposes being that there is a reasonable probability that the conditions which

       resulted in the child’s removal and continued placement outside the home will

       not be remedied by the parents, Mother’s continued relationship with Child

       poses a threat to Child’s well-being, and that termination is in the best interests

       of the child. Ind. Code §§ 31-35-2-4(b)(2)(B)(i-ii), (C); I.C. § 31-37-14-2. We

       address those factors in turn.


                         A. Reasonable Probability Conditions Will Not Be Remedied

[21]   When reviewing a trial court’s determination that the conditions that resulted in

       the child’s removal will not be remedied, we engage in a two-step analysis.

       

E.M., 4 N.E.3d at 642-43

. First, we must identify the conditions that led to

       removal; second, we determine whether there is a reasonable probability that

       those conditions will not be remedied.

Id. at 643.

When engaging in the

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 9 of 15
       second step of this analysis, a trial court must judge a parent’s fitness as of the

       time of the TPR proceeding, taking into account evidence of changed

       conditions, balancing any recent improvements against habitual patterns of

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

       or deprivation.

Id. This delicate balance

is entrusted to the trial court, and a

       trial court acts within its discretion when it weighs a parent’s prior history more

       heavily than efforts made only shortly before termination.

Id. “Requiring trial courts

to give due regard to changed conditions does not preclude them from

       finding that parents’ past behavior is the best predictor of their future behavior.”

Id. [22]

  Here, Child was removed from Mother’s care because of her substance abuse

       issues which affected other areas of her life, such as her ability to maintain

       stable housing and employment. The trial court ordered Mother to participate

       in a number of services to address her substance abuse, housing instability, and

       unemployment, but she did not consistently engage in those services or benefit

       from them when she did engage. Mother completed substance abuse

       assessments and participated in some services but was closed out of random

       drug screening, home-based services, and individual counseling. When Mother

       submitted to drug screens through DCS, she tested positive for

       methamphetamine and amphetamine on twenty occasions throughout the

       underlying CHINS and after the termination proceedings were initiated.

       Mother checked herself out of in-patient substance abuse treatment after one

       week in 2018 and continued to use drugs after she completed EOP in 2019 until


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 10 of 15
       she was reincarcerated. Mother did not find employment or establish a stable

       residence for Child, and her reincarceration in 2019 further prevented her from

       reaching those goals. Accordingly, we find that the trial court’s findings

       supported its conclusion that there was a reasonable likelihood that the

       conditions that merited Child’s removal would not be remedied. See In re D.W.,

       

969 N.E.2d 89

, 96-97 (Ind. Ct. App. 2012) (finding sufficient evidence that

       conditions of removal would not be remedied where Father “consistently failed

       to take advantage of services provided and ordered by the trial court and

       consistently failed to stay clean of drugs.”).


[23]   In her argument to the contrary, Mother directs our attention to evidence in the

       record of her recent efforts at sobriety, employment, and housing. Mother was

       sober for the three months she was incarcerated and found employment when

       she was placed on work release after violating the terms of her home detention.

       Mother also testified at the second termination hearing that her father was

       keeping an apartment for her until she was able to take it over. (Tr. p. 76). We

       commend Mother’s efforts toward sobriety, finding employment, and possibly

       procuring an apartment. However, it was within the trial court’s discretion to

       weigh Mother’s two-year, documented history of repeated substance abuse

       relapses, failure to engage in services, and housing and employment instability

       more heavily than her short-term sobriety while in jail, her employment

       required as part of her conditional release on work release, and nebulous

       testimony about an apartment. 

E.M., 4 N.E.3d at 643

; see also In re L.R., 

79 N.E.3d 985

, 992 (Ind. Ct. App. 2017) (upholding the trial court’s order despite


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 11 of 15
       Mother’s engagement in services and clean drug screens because, by her own

       admissions, her recent stability had lasted only a few months), trans. denied. In

       addition, although Mother expressed the hope that her probation officer would

       approve her being switched from work release to home detention, the record

       shows that on the same day as the second termination hearing, Mother was

       ordered to serve 231 days with the Continuum of Sanctions program. Because

       the evidence and the trial court’s findings clearly and convincingly supported its

       determination, we find no clear error on its part. See 

E.M., 4 N.E.3d at 642

.


[24]   Mother contends that the trial court “terminated mother’s rights because she

       was incarcerated at the time of the termination proceeding.” (Appellant’s Br. p.

       10). Mother likens her case to Rowlett v. Vanderburgh Cty. OFC, 

841 N.E.2d 615

,

       622 (Ind. Ct. App. 2006), trans. denied, wherein another panel of the Court

       reversed the termination of Rowlett’s parental rights based partially on its

       conclusion that DCS had failed to show that there was a reasonable likelihood

       that the conditions that merited removal would not be remedied. Rowlett had

       been incarcerated for all but two months of the CHINS proceedings and for all

       of the termination proceedings.

Id. DCS did not

communicate with Rowlett

       while he was incarcerated.

Id. Nevertheless, during his

incarceration, Rowlett

       had participated in over 1,000 hours of individual and group services directed at

       improving his parenting, anger management, and sobriety; he took college

       courses and was working toward a degree; and he had remained sober during

       his lengthy incarceration.

Id. Observing that conditions

must be assessed as of

       the time of the termination hearing, the Court held that DCS’s evidence of


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 12 of 15
       Rowlett’s long pre-incarceration history of substance abuse, criminal activity,

       transient lifestyle, unemployment, and lack of parenting skills did not accurately

       reflect his current ability to parent.

Id. at 621-22. [25]

  We find that Mother’s case is factually distinguishable from Rowlett. Here,

       Mother was not incarcerated for the majority of the CHINS and for all of the

       termination proceedings, and, thus, she had an opportunity to engage in DCS

       services that was absent in Rowlett. DCS referred her to a host of services in

       which she either participated inconsistently or not at all. Mother did not put in

       the quality and quantity of effort displayed by Rowlett, either when she was free

       in society or when she was incarcerated. Rowlett had also maintained his

       sobriety for a much longer period of time than Mother. As such, we do not find

       Mother’s reliance on Rowlett to be persuasive.


[26]   Mother also argues that there was insufficient evidence to support the trial

       court’s conclusion that her continued relationship with Child constituted a

       threat to Child’s well-being. However, the trial court did not enumerate that

       legal conclusion in its Order as a basis for terminating Mother’s parental rights.

       Even if it had, the termination statute is written in the disjunctive, such that the

       State was required to make either the ‘conditions’ or ‘threat’ showing, not both.

       Bester v. Lake Cty. OFC, 

839 N.E.2d 143

, 148 n.5 (Ind. 2005). Therefore,

       because we have found that the evidence supported the trial court’s conclusion

       on the ‘conditions’ factor, we do not address the second portion of Mother’s

       argument.



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 13 of 15
                                               B. Child’s Best Interests

[27]   Mother also contends that the evidence did not support the trial court’s

       conclusion that termination was in Child’s best interests. Our supreme court

       has recognized that one of the most difficult aspects of a termination of parental

       rights determination is the issue of whether the termination is in the child’s best

       interest. 

E.M., 4 N.E.3d at 647

(noting that the question “necessarily places the

       children’s interest in preserving the family into conflict with their need for

       permanency”). The trial court’s determination that termination was in a child’s

       best interests requires it to look at the totality of the evidence of a particular

       case. In re D.D., 

804 N.E.2d 258

, 267 (Ind. Ct. App. 2004), trans. denied. “In

       doing so, the trial court must subordinate the interests of the parents to those of

       the children involved.”

Id. [28]

  Here, the trial court found that there was a reasonable likelihood that the

       conditions meriting Child’s removal from Mother’s care would not be

       remedied; FCM Dickerson opined that termination was in Child’s best

       interests; and CASA Hamilton had concluded that termination was in Child’s

       best interests. These findings alone supported the trial court’s determination

       that termination of Mother’s parental rights was in Child’s best interests. See

       A.D.S. v. Ind. Dep’t of Child Servs., 

987 N.E.2d 1150

, 1158-59 (Ind. Ct. App.

       2013) (finding the evidence supported the trial court’s ‘best interests’

       determination where the family case manager and CASA supported

       termination and the conditions resulting in removal would not be remedied),

       trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 14 of 15
[29]   Other evidence and findings buttressed the trial court’s determination. At times

       during supervised parenting time during the CHINS proceedings, Mother

       displayed a lack of patience with Child and spoke inappropriately to him, such

       as when she essentially blamed the fact that they no longer lived together on his

       behavior instead of her own drug use. Mother had abducted Child from a

       previous placement and expressed a willingness to do so again, which is not an

       act consistent with good parenting and which indicates that Mother continued

       to place her own needs above Child’s. In the months leading up to the

       termination hearings when Mother was not exercising parenting time, Child’s

       CASA noted that he seemed happier and “his emotions became more

       regulated[.]” (Tr. p. 65). Child had been in a secure, stable, pre-adoptive home

       for two years where he no longer required services and was thriving with his

       two foster sisters. In short, we conclude that the totality of the evidence and

       findings supported the trial court’s determination that termination was in

       Child’s best interests and, therefore, was not clearly erroneous. See 

E.M., 4 N.E.3d at 642

.


                                             CONCLUSION
[30]   Based on the foregoing, we conclude that the trial court’s Order terminating

       Mother’s parental rights to Child was supported by the evidence and was not

       clearly erroneous.


[31]   Affirmed.


[32]   May, J. and Altice, J. concur

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-828 | October 5, 2020   Page 15 of 15