In the Matter of the Termination of the Parent-Child Relationship of: S.L. and J.L. (Minor Children), and A.D. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 29 2016, 9:01 am

this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Erin L. Berger Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana

Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination June 29, 2016
of the Parent-Child Relationship Court of Appeals Case No.
of: S.L. and J.L. (Minor 82A04-1510-JT-1794
Children), and Appeal from the Vanderburgh
Superior Court
A.D. (Mother) The Honorable Brett J. Niemeier,
Appellant-Respondent, Judge
Trial Court Cause Nos.
v. 82D04-1505-JT-869
82D04-1505-JT-870
The Indiana Department of
Child Services,
Appellee-Petitioner.

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 Brown, Judge.

[1] A.D. (“Mother”) appeals the involuntary termination of her parental rights with

respect to her children, J.L., and S.L. (the “Children”). Mother raises two

issues, which we revise and restate as:

I. Whether the trial court abused its discretion in denying Mother’s
motion to continue the termination fact-finding hearing; and

II. Whether the evidence is sufficient to support the termination of
Mother’s parental rights.

We affirm.

Facts and Procedural History

[2] Mother and Jo. L. (“Father”), and together with Mother, (“Parents”), are the

biological parents of S.L., born January 19, 2008, and J.L. born March 24,

2009.1 On September 9, 2013, the Indiana Department of Child Services

(“DCS”) received a report that S.L. received inappropriate discipline;

specifically, that he was punished by having to drink cups of vinegar, being

strapped to a stroller, and standing in a corner while holding his arms out,

among others. On September 11, 2013, the Children were removed from the

Parents’ care based on S.L.’s report that the family was homeless and had been

living in a car. S.L. stated in the report that he slept “in the front seat [of the

car] and my mom and brother sleep in the back” and that he did not feel safe in

1
The court also terminated the parental rights of Father, but he is not participating in this appeal. We recite
those facts relevant to Mother’s appeal.

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 the home. On September 17, 2013, the court held a detention hearing and

ordered the Children’s continued removal.

[3] On September 18, 2013, DCS filed petitions alleging that J.L. and S.L. were

children in need of services (“CHINS”), due to the reports of inappropriate

discipline and homelessness. On October 16, 2013, the court determined that

the Children were CHINS, affirmed its previous detention, and authorized the

Children’s continued removal from Mother. On November 13, 2013, the court

held a dispositional hearing and issued a dispositional order on December 11,

2013, which required Mother to participate in services, including parent aide

services, parenting education classes, random drug screens, supervised or

monitored visitation, to remain drug and alcohol free, and to sign all releases

necessary to monitor compliance.

[4] On January 29, 2014, DCS filed a verified information for contempt as to

Mother after she admitted to noncompliance with the court’s orders due to her

failure to remain drug and alcohol free. Mother was sentenced to ninety days

in jail, but the court stayed her sentence. On July 16, 2014, the court suspended

Mother’s services due to noncompliance. On July 30, 2014, DCS filed its first

set of termination petitions (“First Termination”). At the start of the October

24, 2014 termination fact-finding hearing Mother requested a continuance, to

which DCS objected, and the court took Mother’s motion under advisement.

After DCS presented evidence in its case-in-chief, both DCS and the Court

Appointed Special Advocate (“CASA”) agreed to Mother’s request for a

continuance to further engage in services, and the court set the matter for a

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 hearing on December 29, 2014. At the close of the First Termination hearing,

the court ordered Mother to comply with drug screens, to remain drug and

alcohol free, to comply with treatment from Southwestern Behavioral, to follow

substance abuse treatment with Counseling for Change, to attend parenting

classes recommended by the State, and to work with a parent aide. On January

23, 2015, the First Termination petitions were dismissed, and Mother was again

ordered to complete services.

[5] On May 19, 2015, DCS filed its second set of termination petitions (“Second

Termination”), and, on August 6, 2015, the court held a fact-finding hearing on

the Second Termination. At the start of the Second Termination hearing,

Mother requested a continuance, which the court denied, and proceeded with

the hearing. The court heard testimony from Mother, Martha Reising, a parent

aide at Ireland Home Based Services, family case manager Jennifer Beadles

(“FCM Beadles”), James Akin, the clinical director at Counseling for Change,

CASA Nancy Ubelhor (“CASA Ubelhor”), family case manager Elizabeth Jost

(“FCM Jost”), and J.V., Mother’s fiancé.

[6] On October 7, 2015, the court issued orders terminating Mother’s parental

rights with respect to the Children. Both orders contained detailed findings of

fact and concluded that there is a reasonable probability that the conditions

which resulted in the Children’s removal and continued placement outside the

home will not be remedied, that continuation of the parent-child relationship

poses a threat to the Children’s well-being, that termination of Mother’s

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 parental rights is in the Children’s best interests, and that adoption is a

satisfactory plan for the Children.

Discussion

I.

[7] The first issue is whether the court abused its discretion by denying Mother’s

motion to continue the termination hearing. Mother argues that she showed

good cause for a continuance and was prejudiced by the court’s denial of her

motion. In support of her argument, Mother relies on Rowlett v. Vanderburgh

Cnty. Office of Family & Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans.

denied. DCS states that Mother’s circumstances are distinguishable from those

presented in Rowlett, that Mother failed to show good cause or prejudice, and

that her desire to explore post-adoption contact is not an issue in termination

proceedings.

[8] Indiana Trial Rule 53.5 provides:

Upon motion, trial may be postponed or continued in the
discretion of the court, and shall be allowed upon a showing of
good cause established by affidavit or other evidence. The court
may award such costs as will reimburse the other parties for their
actual expenses incurred from the delay. A motion to postpone
the trial on account of the absence of evidence can be made only
upon affidavit, showing the materiality of the evidence expected
to be obtained, and that due diligence has been used to obtain it. .
..

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 We note that the decision to grant or deny a motion to continue rests within the

sound discretion of the trial court. Rowlett v. Vanderburgh Cnty. Office of Family &

Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. Discretion is a

privilege afforded a trial court to act in accord with what is fair and equitable in

each circumstance. J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d

40, 43 (Ind. Ct. App. 2004), trans. denied. A decision on a motion for

continuance will be reversed only upon a showing of an abuse of discretion and

prejudice resulting from such an abuse. Id.

[9] In Rowlett, the father, who was incarcerated, had expressed a desire for

reunification starting on the very day his children were removed, and was active

in the CHINS case. 841 N.E.2d at 618-619. The father requested a

continuance of the termination hearing until after his release, which was denied

by the trial court. Id. at 618. This Court concluded that the trial court abused

its discretion in denying the request for a continuance and noted that father had

been incarcerated for all but two months of the action and had not been given a

full opportunity “to participate in services offered by the OFC directed at

reunifying him with his children upon his release from prison.” Id. at 619.

[10] Unlike the incarcerated father in Rowlett, who lacked an opportunity to

participate in services and took substantial advantage of the resources available

to him while he was incarcerated, Mother was not incarcerated and has been

offered a wide range of services over the course of the nearly two-year period of

her Children’s underlying CHINS cases to improve her fitness to parent the

Children, and had not completed the goals of her case plan. Mother was

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 previously granted a continuance following the First Termination hearing to

further engage in services and work towards reunification. After she was given

another opportunity to participate in services, at the time of the second hearing

she had not completed her second attempt at drug treatment, continued to test

positive for drugs, failed to appear for drug screens and was unable to secure

stable housing of her own or obtain stable income. Based upon the record and

in light of the fact that Mother had been previously given a second opportunity

to participate in services, we cannot say that she has shown good cause for

another continuance. Therefore, the court did not abuse its discretion in

denying her motion.2

II.

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

Mother’s parental rights. In order to terminate a parent-child relationship, DCS

is required to allege and prove, among other things:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for

2
Mother also relies upon In re A.J., 881 N.E.2d 706, 719 (Ind. Ct. App. 2008), trans. denied. In A.J., we
observed, with respect to a mother who was in the midst of an intensive substance abuse program when the
termination hearing was held, that “perhaps the more prudent course would have been to continue the case .
. . in order to establish whether [the mother], in fact, completed the . . . program and remained drug free.”
However, A.J. did not involve a motion for a continuance and, despite the observation related to the mother’s
progress in a substance abuse program, we ultimately affirmed the termination of the mother’s parental
rights.

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 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).

[12] 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

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

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

from the evidence.” Id. (quoting Egly v. Blackford Cnty. Dep’t 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.

[13] “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))). “Because a

case that seems close on a ‘dry record’ may have been much more clear-cut in

person, we must be careful not to substitute our judgment for the trial court

when reviewing the sufficiency of the evidence.” Id. at 640.

[14] Here, Mother does not challenge the court’s conclusions or develop an

argument regarding Ind. Code § 31-35-2-4(b)(2)(A) and -4(b)(2)(C)-(D). We

therefore confine our discussion to Section 4(b)(2)(B).

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 Remedy of Conditions

[15] 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 the Children outside the home will not be remedied. See Ind. Code § 31-35-2-

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

[16] In determining whether the conditions that resulted in the Children’s removal

will not be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d at

642-643. First, we identify the conditions that led to removal; and second, we

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. at 643. In the second step, the trial court must judge a

parent’s fitness as of the time of the termination proceeding, taking into

consideration evidence of changed conditions and balancing a parent’s recent

improvements against habitual patterns of conduct to determine whether there

is a substantial probability of future neglect or deprivation. Id. We entrust that

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. 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.

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[17] 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

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. A trial court need not wait until a child is

irreversibly influenced by a deficient lifestyle such that his or her physical,

mental, and social growth are permanently impaired before terminating the

parent-child relationship. In re Z.C., 13 N.E.3d 464, 469 (Ind. Ct. App. 2014),

trans. denied.

[18] Mother argues that DCS failed to prove by clear and convincing evidence that

she had not remedied the conditions leading to the Children’s removal and

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 points out that at the time of the Second Termination fact-finding hearing she

was living in the home of her fiancé’s mother and was looking for alternative

housing, participating in substance abuse treatment, seeing a therapist at

Southwestern Behavioral, and had completed a parenting class.

[19] DCS maintains that Mother does not challenge the court’s findings, that the

unchallenged findings support the court’s decision, and that her arguments are a

request to reweigh the evidence. It further points out that Mother failed to

remedy the conditions that led to removal, specifically her unstable housing and

financial situation and her failure to complete required services.

[20] The trial court’s orders addressed Mother’s participation in services, therapy,

and her search for stable housing. Specifically, the court entered substantially

similar separate orders with respect to S.L. and J.L and in the order related to

S.L. found:

FINDINGS OF FACT

*****

12. After the dismissal of the termination petition, [Mother] once
again failed to follow through with services. The State again
filed for termination.

13. On August 6, 2015, the termination hearing took place.
[Mother] was represented by an attorney. [Mother] acted
appropriately throughout the proceedings, but on many
occasion[s] the Court found her testimony to be less than
forthcoming.

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 14. Throughout the course of the CHINS case, [S.L.] was never
returned to her care, thus [S.L.] has been separated from
[Mother] for almost two years. The main obstacle to returning
[S.L.] was lack of consistency on [Mother’s] part. The primary
issue in the case was one of stable housing, but as the case
progressed it was apparent that substance abuse and mental
health issues also existed, which could adversely affect the
housing issue long term.

15. The Department offered [Mother] several resources to help
her secure housing in the CHINS case. In 2014, [Mother] was
offered housing at Albion, a local agency specializing in domestic
violence counselling. [Mother] only stayed at Albion for two
weeks. After leaving Albion, [Mother] was offered long term
housing at the YWCA. [Mother] only stayed at the YWCA for
two weeks. Next [Mother] was offered [] long term housing at
Goodwill. [Mother] did not take advantage of this housing
option, instead [Mother] turned it down. Mother also stated that
in two years, she only visited the section 8 office once, which
could have supplied her the necessary housing to get her child
back. [Mother] indicated that they were not accepting
applications the one time she asked, so she never returned.

16. From September 2013 to 2015, [Mother] moved at least 6
times and at no point was [S.L.] able to be reunified into her
care. At one of her homes she had a noose hanging in the living
room, which was later removed after being observed by CASA.
The displaying of a noose causes concern to the Court as
[Mother] also wore a black skull and crossbones t-shirt for the
trial with black fingernail polish. The Court will not speculate as
to why [Mother] chooses to hang a noose in her home, but
clearly [S.L.] should not be around such decor. Most recently,
[Mother] has been living with her fiancé and his mother, but the
home has never been approved to have [S.L.] there. [Mother] is
not on the lease and [Mother] told the case manager she could
not come into the home. [Mother] recently has had a few new

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 plans to secure housing, but at [the] time of the trial this still had
not been accomplished.

17. Mother was twice offered a parent aid that could help her
find good and stable housing and employment, but [Mother]
stop[ped] working with the parent aid[e]. [Mother] claimed this
was the parent aid[e’]s fault and due to her phone being stolen.
The Court did not find [Mother’s] testimony credible on her
excuses.

18. Mother claims she cannot work as she is under too much
stress and she is hoping for disability, but there is no indication
that she will receive disability in the near future. [Mother]
rel[ies] on her fiancé, who she has had an on-off relationship in
the past, for financial support. He works hard and brings home
approximately $400 a week.

19. Mother has failed to complete her substance abuse [sic].
Mother admits to testing positive for drugs not prescribed to her
during the case. After being ordered to comply with services in
January of 2015, [Mother] tested positive for prescription pills
and failed to appear for several drug screens. In total, she has
missed approximately 20 drug screens and of the approximate[ly]
20 she has taken she has tested positive 6-7 times. Mother
reports she is a Xanax abuser, but she has been diagnosed as an
opiate abuser.[3] She is actively engaged in treatment, but has not
been fully compliant as she has missed 4 sessions, which
normally, but not for her, results in termination from the
program. She also has not been compliant in submitting proof
and/or attending AA meetings as required by the treatment
agency. [Mother] has completed 13 treatment sessions, but has

[3 ]
James Akin, the clinical director at Counseling for Change, testified that Mother “admitted to
some illegal xan[a]x use” and was diagnosed with “opioid use disorder. . . .” Transcript at 305.

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 at least 19 more to attend. The likelihood that she successfully
completes treatment is slim. The likelihood that she relapses is
great.

20. Mother originally started substance abuse treatment for free
in November of 2014. However, in February of 2015, [Mother]
was discharged for failing to attend. After the Department filed
its second termination petition, [Mother] re-enrolled for free
treatment at Counseling for Change to address her substance
abuse. This is the treatment she is now undergoing. She is also
receiving some support for her emotional state, but it is unclear
whether this service is truly mental health treatment as the Court
had previously ordered. The Court had ordered a psychological
assessment and treatment at Southwestern Behavioral, the local
mental health agency, which specializes in mental health care,
including the possibility of prescribing medication. [Counseling]
For Change does not offer such services. [Mother] failed to
follow up with the local mental health agency.

21. [Mother], to her credit, completed a parenting class as
ordered by the Court.

22. [Mother] also regular[ly] attends visits with [S.L.].

23. Unfortunately, [Mother] now admits she has a gambling
problem and spends approximately $25 a week on lottery tickets.
This particular issue had never been addressed at a Court hearing
or the DCS.

24. The Court also offered [Mother] information on the Aids
Resource Group. The Aids group would be free to [Mother], yet
[Mother] never took advantage of this service.

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 25. The CASA, who had been a part of the case since January of
2014, testified that placement of [S.L.] with [Mother], was not in
[S.L.’s] best interest.

26. The DCS family case manager Jennifer Bea[d]les encouraged
[Mother] to complete services to the extent that when [S.L.]
changed placements, the family case manager purposely placed
[S.L.] in a non-“pre-adoptive” home to encourage [Mother] to
work [sic] her services and be reunified with [S.L.]. Mother did
not work [sic] her services.

27. Current family case manager Elizabeth Jost has tried to meet
with the [Mother]. She has tried to help [Mother] engage in
services. Due to [Mother’s] short [sic] comings coupled with the
needs of [S.L.], the current family case manager recommends
that [Mother’s] termination of parental rights because it would be
in [S.L.’s] best interest. Further the family case manager testified
that the permanency plan should be adoption.

28. [S.L.] is adoptable.

29. The plan of adoption is a satisfactory plan to achieve
permanency for [S.L.].

Appellant’s Appendix at 23-26.

[21] To the extent Mother does not challenge the juvenile court’s findings of fact,

these unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373

(Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in

waiver of the argument that the findings were clearly erroneous), trans. denied;

McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (when the

father failed to challenge specific findings, the court accepted them as true).
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[22] The record reveals that the Children were initially removed from Mother’s care,

in part, due to her inability to maintain stable housing and inappropriate

discipline. At the time of the hearing, Mother had not obtained stable housing

and had not completed all of her required services. Mother has moved six times

since September 2013, and has resided in a motel and at various shelters. She

was living in her fiancé’s mother’s home at the time of the hearing. Mother

further acknowledged that the Children could not live in her current residence

because DCS had not assessed its suitability. As to housing, the court found

that Mother was not “on the lease” for the apartment, at one point “told the

case manager she could not come into the home,” and although she stated that

she “had a few new plans to secure housing, [] at [the] time of the trial this still

had not been accomplished.” Appellant’s Appendix at 24. Regarding Mother’s

finances, the record reveals, and the court’s findings reflect that at the time of

the hearing, Mother was unemployed, was unsuccessful in her efforts to obtain

disability, and was dependent on her fiancé for income. Also, after Mother was

given a second chance to participate in services, she completed only thirteen

drug treatment sessions and had at least nineteen more sessions before the

program would be completed, accumulated four unexcused absences, and failed

to document her attendance at mandatory AA meetings. Mother also produced

a positive drug screen in April 2015 for hydrocodone and hyrdomorphone, and

had not maintained consistent contact with her parent aide. When reviewing

Mother’s participation in services, FCM Jost testified that Mother had

completed a parenting class and complied with visitation but that she had failed

to complete substance abuse treatment and remain drug and alcohol free, failed
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 to complete individual counseling, and had not complied with her parent aide’s

requirements. CASA Ubelhor stated that her recommendation is “to terminate

parental rights and get these kids adopted,” adding that she did not “believe the

mother is capable of mothering or parenting the children” and that Mother had

not “shown us by compliance [with the case plan] that she’s interested in

parenting them.” Transcript at 330.

[23] Based upon the court’s findings and the record, we conclude that clear and

convincing evidence supports the trial court’s determination that there was a

reasonable probability that the conditions leading to the Children’s removal

would not be remedied.

Conclusion

[24] We conclude that the trial court’s judgment terminating Mother’s parental

rights is supported by clear and convincing evidence. We find no error and

affirm.

[25] Affirmed.

Baker, J., and May, J., concur.

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