In the Matter of the Termination of the Parent-Child Relationship of: B.W., Minor Child B.F., Father, and W.W., Mother v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Dec 21 2015, 6:28 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
MOTHER Gregory F. Zoeller
Leanna Weissmann Attorney General of Indiana
Lawrenceburg, Indiana
Robert J. Henke
ATTORNEY FOR APPELLANT David E. Corey
FATHER Deputy Attorneys General
Jeffrey E. Stratman Indianapolis, Indiana
Aurora, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination December 21, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: B.W., Minor Child 21A05-1505-JT-511
Appeal from the Fayette Circuit
Court
B.F., Father, and W.W., Mother,
Appellants-Respondents, The Honorable Jack A. Tandy,
Senior Judge
v. The Honorable Beth A. Butsch,
Judge
The Indiana Department of Child
Trial Court Cause No.
Services,
21C01-1412-JT-324
Appellee-Petitioner.

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 Brown, Judge.

[1] W.W. (“Mother”) and B.F. (“Father”) appeal the involuntary termination of

their parental rights with respect to their son B.W. Mother and Father raise one

issue, which we revise and restate as whether the evidence is sufficient to

support the termination of their parental rights. We affirm.

Facts and Procedural History

[2] On July 30, 2003, B.W. was born. On May 20, 2011, Father pled guilty to

dealing in a narcotic drug as a class B felony and being an habitual offender.

On June 17, 2011, the trial court sentenced Father to the Department of

Correction (“DOC”) for twelve and one-half years, enhanced by ten years for

his status as an habitual offender, for an aggregate sentence of twenty-two and

one-half years. In 2012, Mother was convicted of possession of a controlled

substance.1

[3] In June 2013, DCS received reports alleging a lack of supervision of B.W., that

Mother was using drugs, and that B.W. was a victim/perpetrator of sex abuse.

Kathy Hobson, a DCS family case manager supervisor, went to the home and

“found that the allegations were true.” Transcript at 46.

1
At the December 3, 2014 hearing, Mother was asked when she was convicted of possession of a controlled
substance, and she replied: “Um, just about two years ago I think.” Transcript at 18. The record does not
reveal Mother’s sentence for her conviction.

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[4] On July 12, 2013, DCS filed a verified petition alleging that B.W. was a child in

need of services (“CHINS”). DCS alleged that B.W. had exhibited sexually

maladaptive behaviors including anally penetrating his five-year-old cousin and

performing fellatio on him. DCS also alleged that B.W. started fires in his

home and that Mother’s ability to care for and manage B.W.’s behavior was

impaired by her drug use.

[5] On July 16, 2013, the court entered an Order on Initial/Detention Hearing.

The court found that Father denied the allegations and that Mother admitted

the allegations. The court appointed an attorney for Father and ordered that

the detention of B.W. was authorized or necessary to protect him and that it

was in his best interests to remove him from the home environment. On

August 14, 2013, the court entered an Order on Admission in which it found

that both parents admitted the allegation that B.W. was a CHINS.

[6] On September 6, 2013, the court entered an Order of Participation and a

Dispositional Order. The court found that Mother and Father admitted that

B.W. had exhibited sexually maladaptive behaviors including anally

penetrating his five-year-old cousin and performing fellatio on him. The court

also found that B.W. was a CHINS because he started fires in his home and

Mother’s ability to care for and manage his behavior was impaired by her drug

abuse. The court ordered Mother to contact the case manager every week,

allow the family case manager to make announced and unannounced visits to

the home, enroll in recommended services, keep all appointments, not use

controlled substances, complete a substance abuse assessment and follow all

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 treatment recommendations, submit to random drug screens, and maintain

suitable, safe, and stable housing. At some point, Mother moved to Richmond

despite service providers discouraging her from moving away from her support

and family in Fayette County.

[7] On December 30, 2013, the court entered an Order on Periodic Case Review

finding that Mother and Father were incarcerated. On March 21, 2014, the

court entered an Order on Periodic Case Review in which the court found that

Mother had not enhanced her ability to fulfill her parental obligations.

[8] On June 30, 2014, the court entered an Order Approving Permanency Plan in

which it found that Mother failed to participate in outpatient substance abuse

treatment on three occasions, declined inpatient treatment, and tested positive

for hydromorphone, morphine, Alprazolam, and hydrocodone. The court

found that Father remained incarcerated and was unable to fulfill parental

obligations, and appointed counsel for Mother. On September 10, 2014, the

court entered an Order on Periodic Case Review finding that the projected date

for B.W.’s adoption was March 2015.

[9] On October 24, 2014, Family Case Manager (FCM) Melissa Sparks, drove to

Richmond to pick up Mother, who did not have an automobile, to take her to

Connersville for a family team meeting to discuss visitations and services, but

Mother did not answer the door at 8:15 a.m. and later said that her alarm did

not go off and she had overslept. On November 21, 2014, Mother called Sparks

and said that she wanted to meet with her the following Monday. Sparks told

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 her that she was more than willing to do that; however, Mother then failed to

contact her. Meanwhile, in September 2014, Mother completed treatment at

Tara Treatment Centers, but she did not follow through with the recommended

services including outpatient substance abuse treatment, individual therapy,

attendance at A.A. meetings, and maintaining contact with a sponsor.

[10] On December 3, 2014, the court held a review hearing. At the hearing, Sparks

testified that Mother completed treatment at Tara Treatment Center in October

2014, but did not consistently stay in contact with her, and that B.W. attempted

to call Mother twice and was unable to contact her. Melanie Bailey, the court

appointed special advocate (CASA), testified that she recommended that B.W.

stay in his current placement, that B.W. loves Mother, that Mother “has refused

services offered to her from Centerstone,” and that she refused “life skills, basic

skills . . . .” Id. at 22.

[11] On December 4, 2014, DCS filed a Verified Petition for Involuntary

Termination of Parental Rights. On December 17, 2014, the court held an

initial hearing and appointed counsel for Mother and Father.

[12] Meanwhile, on December 11, 2014, DCS filed a Motion to Modify

Dispositional Decree requesting that a change in the permanency plan to

adoption was appropriate, and that cessation of DCS provided services was

appropriate because Mother and Father had not complied with them and/or

failed to benefit from the services. On January 14, 2015, the court held a

hearing on DCS’s motion and granted it by approving the change of the

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 permanency plan to adoption and approving DCS’s request that services to

parents cease. The court also stated:

[I]f I guess at some point [Mother] makes a specific request if she
wants services and is willing to follow through then I would
certainly look at that and consider that. I’m just saying I don’t
see this as a permanent order but she needs to step up to the plate
and do something if she’s serious about it.

Id. at 38. Despite the order, Sparks still attempted to stop by and contact

Mother once or twice a month.

[13] On April 1, 2015, the court held a hearing. Hobson, the family case manager

supervisor, and Sparks testified. Hobson testified that Mother never completely

agreed that she had a substance abuse problem. When asked what she meant,

Hobson stated:

Um, [Mother] makes lots of um, to make excuses um, she’s not
using, she is using, she’s using a legal prescription or it’s not . . .
it’s been a constant battle throughout the case of [Mother]
struggling with addiction. We’ve made multiple referrals to get
[Mother] the help that she needs throughout all the different case
managers. Each different case managers tried to assist [Mother]
getting off drugs and I believe today she’s under the influence
still.

Id. at 51.

[14] Megan Jackson, an employee at Centerstone and the liaison to DCS, testified

that Mother completed a substance assessment and had referrals for a substance

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 use group, but she was ultimately removed for non-attendance. She also

testified that she had a referral for supervised visitation, but she was unable to

schedule those with Mother because she was not able to contact her via

telephone. Jackson testified that Mother’s first intake was on January 14, 2014,

but that group sessions did not begin until March 17, 2014, because she had

difficulty contacting Mother, and that Mother cancelled or failed to show for

appointments in March, April, June, and July 2014. According to Jackson,

Mother’s group therapist removed her from the group based on “non-

attendance and non-investment” in April 2014, Mother was later readmitted to

the group, and she subsequently cancelled or failed to show for appointments.

Id. at 95.

[15] Sparks testified that she was assigned the case in August 2014, that she made

referrals for detox services, substance abuse treatment, home-based case

management and therapy, and supervised visitation, and that:

[Mother] has not been compliant with the services insofar as um,
she will start and stop a lot of the services that were ordered um,
she will state that she wants to do the services and referrals will
be made for those services but then um, [Mother] will only meet
a couple of times and then be [un]able to be contacted or will not
show up for services.

Id. at 56. According to Sparks, Mother ultimately completed inpatient

treatment at Tara, but did not follow through with any of the recommended

services, including outpatient substance abuse treatment, individual therapy,

attendance at A.A. meetings, and maintaining contact with a sponsor. In

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 October or November 2014, Mother attended two sessions at Meridian, a

service provider, but Sparks received an email in January 2015 from Meridian

indicating that they had not been able to contact Mother and that they were

going to have to “close that out because they had not met with her . . . .” Id. at

72. Sparks also stated that Mother was inconsistent with staying in contact

with any of the service providers or the family case managers, following

through with goals, and making phone calls to B.W. She further testified that

Mother failed to contact her on a weekly basis as required by the dispositional

order, and that Sparks would call and leave messages, but Mother would not

return the calls.

[16] With respect to suitable housing, Sparks testified that she went to the address

Mother provided as her current home several times each month and twice a

month since December 2014 and knocked on the door, but no one answered,

and that Mother has not enhanced her ability to parent B.W. because of her

lack of consistency and her inability to follow through with services and stay in

contact with DCS.

[17] With respect to Father, Sparks testified that Father expressed an interest in

B.W., but due to his incarceration he realizes that he will not be able to provide

for him. She testified that she had not been able to provide direct services to

Father because of his incarceration, and that his scheduled release date is 2023,

at which time B.W. will be an adult.

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[18] The court appointed special advocate (CASA), Melanie Bailey, testified that

Mother had not been cooperative and did not respond to her texts or calls.

Bailey suggested to Mother that she write a letter to B.W., but Mother did not

do so. Bailey testified that she agreed that adoption was in B.W.’s best interest

because he has improved, now has self-esteem, and has bonded with his foster

family. On cross-examination, she stated that she believed that Mother wants

to reunite with B.W. but Mother did not do anything in a committed way.

[19] DCS presented evidence that Mother tested positive for opiates, including

hydromorphone and morphine, in March 2014, opiates, including

hydrocodone, in June 2014, and THC in December 2014.

[20] Father testified that he had not seen B.W. since 2010, that his scheduled release

date is 2023, and that he participated in services made available to him at the

DOC.

[21] Mother testified that she previously admitted that B.W. was a CHINS in part

because of her illegal drug use, that she cancelled multiple appointments with

Centerstone, that she was experiencing “really bad anxiety about everything”

and could not cope, and that Jackson said that she “would set something up”

but never did. Id. at 145. When asked whether she stopped using illegal

substances, Mother answered: “Um, I had a really bad problem and I did work

on it. I did go to rehab and I think it was detox and um, I have been going to

narcotic anonymous classes when I can. I’ve done them over the Internet um, I

am doing better than I have in a very long time so um . . . .” Id. at 147. She

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 testified that she moved to Richmond for a fresh start with new people, and that

she called Sparks every week or more than once a week, but her anxiety and

depression became so bad that she “couldn’t just beg her anymore.” Id. at 153.

[22] According to the combined testimony of Sparks, B.W.’s therapist, and the foster

mother, B.W. was initially defiant, and while at the time of the April 2015

hearing, he refused to discuss the sexually maladaptive behavior, he was doing

well generally, had improved, and felt safe in the foster family home.

[23] On April 28, 2015, the court entered an order terminating Father and Mother’s

parental rights, making detailed findings of fact, and concluding that there is a

reasonable probability that the conditions resulting in B.W.’s removal will not

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

to the well-being of B.W., that termination is in B.W.’s best interests, and that

adoption is a satisfactory plan for him.

Discussion

[24] The issue is whether the evidence is sufficient to support the termination of

Mother and Father’s parental rights. In order to terminate a parent-child

relationship, DCS is required to allege and prove, among other things:

(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least
six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a description of

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 the court’s finding, the date of the finding, and the manner
in which the finding was made.
(iii) The child has been removed from the parent and has
been under the supervision of a local office or probation
department for at least fifteen (15) months of the most
recent twenty-two (22) months, beginning with the date
the child is removed from the home as a result of the child
being alleged to be a child in need of services or a
delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of
the child.

Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition

described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

child relationship. See Ind. Code § 31-35-2-8(a).

[25] The State’s burden of proof for establishing the allegations in termination cases

“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

‘heightened burden of proof’ reflecting termination’s ‘serious social
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 consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

heightened standard is the trial court’s prerogative—in contrast to our well-

settled, highly deferential standard of review.” Id. “We do not reweigh the

evidence or determine the credibility of witnesses, but consider only the

evidence that supports the judgment and the reasonable inferences to be drawn

from the evidence.” Id. (quoting Egly v. Blackford Cnty. Dept. of Pub. Welfare, 592

N.E.2d 1232, 1235 (Ind. 1992)). “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.

[26] “Reviewing whether the evidence ‘clearly and convincingly’ supports the

findings, or the findings ‘clearly and convincingly’ support the judgment, is not

a license to reweigh the evidence.” Id. “[W]e do not independently determine

whether that heightened standard is met, as we would under the ‘constitutional

harmless error standard,’ which requires the reviewing court itself to ‘be

sufficiently confident to declare the error harmless beyond a reasonable doubt.’”

Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

California, 386 U.S. 18, 87 S. Ct. 824 (1967), reh’g denied). “Our review must

‘give “due regard” to the trial court’s opportunity to judge the credibility of the

witnesses firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office,

989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A)).

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 A. Remedy of Conditions

[27] We note that the involuntary termination statute is written in the disjunctive

and requires proof of only one of the circumstances listed in Ind. Code § 31-35-

2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we

limit our review to whether DCS established that there was a reasonable

probability that the conditions resulting in the removal or reasons for placement

of B.W. outside the home will not be remedied. See Ind. Code § 31-35-2-

4(b)(2)(B)(i).

[28] In making such a determination, the court must judge a parent’s fitness to care

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

consideration evidence of changed conditions. In re N.Q., 996 N.E.2d 385, 392

(Ind. Ct. App. 2013). Due to the permanent effect of termination, the trial court

also must evaluate the parent’s habitual patterns of conduct to determine the

probability of future neglect or deprivation of the child. Id. “The statute does

not simply focus on the initial basis for a child’s removal for purposes of

determining whether a parent’s rights should be terminated, but also those bases

resulting in the continued placement outside the home.” Id. (citation and

internal quotation marks omitted). A court may properly consider evidence of

a parent’s prior criminal history, drug and alcohol abuse, history of neglect,

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

A trial court can reasonably consider the services offered by DCS to the parent

and the parent’s response to those services. Id. Further, where there are only

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 temporary improvements and the pattern of conduct shows no overall progress,

the court might reasonably find that under the circumstances, the problematic

situation will not improve. Id.

[29] Mother and Father argue that DCS presented insufficient evidence to support a

reasonable probability that the conditions resulting in removal will not be

remedied. Mother admits that she did not have a “swift path to recovery and

made some missteps along the way,” but she was combatting her drug

addiction. Mother’s Brief at 18. She asserts that “she did test positive for pot,

but compared to an opiate addiction, the use of just marijuana shows major

progress toward becoming drug free.” Id. at 19. She points to her December

2014 negative test for opiates following her inpatient therapy.

[30] Father argues that, although he is not currently scheduled to be released until

2023, he is making efforts to reduce, modify, or reverse his sentence through

petitions for post-conviction relief or sentence modification. Without citation

to the record or authority, he asserts that it is not uncommon for incarcerated

defendants to receive early release to parole or a reduction in time, especially

when the inmate is actively participating in services and programs offered by

the DOC.

[31] DCS states that Mother and Father do not specifically challenge any of the

court’s findings of fact, that Mother’s argument continues to minimize her

substance abuse issues, and that the trial court’s conclusion that Mother and

Father would not likely remedy their conditions is not clearly erroneous.

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[32] The record reveals that Mother admitted that B.W. was a CHINS in part

because of her illegal drug use. Since the September 6, 2013 order requiring

that she not use controlled substances, in March 2014 Mother tested positive for

opiates, including hydromorphone and morphine, in June 2014 for opiates,

including hydrocodone, and for THC in December 2014. She did not follow

through with any of the services recommended after completing inpatient.

Sparks testified that Mother had not enhanced her ability to parent B.W.

because of her lack of consistency and her inability to follow through with

services. The record also reveals that Father’s scheduled release date is 2023,

when B.W. will be an adult.

[33] Based upon the court’s findings and the record as set forth in part above, we

conclude that clear and convincing evidence supports the trial court’s

determination that there was a reasonable probability that the conditions

leading to B.W.’s removal would not be remedied.

B. Best Interests

[34] We next consider Mother and Father’s assertion that DCS did not present clear

and convincing evidence that termination was in B.W.’s best interests. They

state that DCS failed to show the current arrangement is detrimental to B.W.

beyond the generally accepted notion that children are better off in a stable and

permanent environment. DCS maintains that the totality of the evidence

including the testimony of FCM Sparks and CASA Bailey support the trial

court’s conclusion.

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[35] We are mindful that in determining what is in the best interests of a child, the

trial court is required to look beyond the factors identified by DCS and to the

totality of the evidence. McBride v. Monroe Cnty. Office of Family & Children, 798

N.E.2d 185, 203 (Ind. Ct. App. 2003). In so doing, the court must subordinate

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

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

relationship. Id. Children have a paramount need for permanency which the

Indiana Supreme Court has called a central consideration in determining the

child’s best interests. In re E.M., 4 N.E.3d at 647-648. However, “focusing on

permanency, standing alone, would impermissibly invert the best-interests

inquiry . . . .” Id. at 648. This court has previously held that the

recommendation by both the case manager and child 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. A.D.S. v. Ind. Dep’t of Child Servs., 987

N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied. This court has

previously recognized that “[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), trans. denied.

[36] To the extent Father cites In re G.Y., the Indiana Supreme Court issued that

decision in April 2009, concluding that termination of a mother’s parental

rights was not in the child’s best interests where mother made a good-faith

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 effort to complete the required services available to her in prison, obtained

suitable housing and gainful employment upon her release, and maintained a

consistent and positive relationship with the child. 904 N.E.2d at 1263-1264.

The Court observed that mother had delivered cocaine to a police informant a

year before the child’s birth and that there were no allegations that mother

engaged in any criminal behavior during the child’s life. Id. at 1258. Further,

the Court stated that, at oral argument, mother’s counsel confirmed that her

projected release date was June 2009 and maybe as early as May. Id. at 1262-

1263. Unlike the parent in G.Y., Father committed his offense after B.W.’s

birth, has not seen B.W. since 2010, and his scheduled release date is in 2023

when B.W. will be an adult.

[37] The record reveals that, while Mother completed inpatient treatment, she did

not follow through with any of the services recommended by the service

providers. Sparks testified that Mother had not been compliant and failed to

follow through with services or keep appointments or maintain contact with

DCS. She also testified that Mother had not enhanced her ability to parent

B.W. CASA Bailey testified that Mother had not been cooperative and that

adoption was in B.W.’s best interests.

[38] Based on the totality of the evidence and in light of our deferential standard of

review, we conclude that the court’s determination that termination is in B.W.’s

best interests is supported by clear and convincing evidence. See In re J.C., 994

N.E.2d 278, 290 (Ind. Ct. App. 2013) (observing that “[r]ecommendations of

the case manager . . . in addition to evidence the conditions resulting in removal

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 will not be remedied, are sufficient to show by clear and convincing evidence

that termination is in the child’s best interests”), reh’g denied; In re A.I., 825

N.E.2d 798, 811 (Ind. Ct. App. 2005) (testimony of court appointed advocate

and family case manager, coupled with evidence that conditions resulting in

continued placement outside the home will not be remedied, is sufficient to

prove by clear and convincing evidence termination is in child’s best interests),

trans. denied. See also In re E.M., 4 N.E.3d at 649 (holding that incarceration

alone cannot justify “tolling” a child-welfare case and concluding that, because

the trial court could reasonably have reached either conclusion, our deferential

standard of review is dispositive and it was not clearly erroneous for the trial

court to conclude that, after three and a half years, Father’s efforts simply came

too late, and that the children needed permanency even more than they needed

a final effort at family preservation).

Conclusion

[39] We conclude that the trial court’s judgment terminating the parental rights of

Father and Mother is supported by clear and convincing evidence. We find no

error and affirm.

[40] Affirmed.

Kirsch, J., and Mathias, J., concur.

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