In the Matter of the Termination of the Parent-Child Relationship of I.S. (Child) and M.B. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 31 2017, 10:58 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Braden J. Dean Curtis T. Hill, Jr.
Hillis, Hillis, Rozzi & Achey Attorney General of Indiana
Logansport, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination May 31, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of I.S. (Child), 79A05-1611-JT-2743
and Appeal from the Tippecanoe
Superior Court
M.B. (Mother),
The Honorable Faith A. Graham,
Appellant-Respondent, Judge

v. Trial Court Cause No.
79D03-1602-JT-21

The Indiana Department of
Child Services,
Appellee-Petitioner

Vaidik, Chief Judge.

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 Case Summary
[1] M.B. (“Mother”) has abused drugs for years. The Department of Child

Services (DCS) intervened when her daughter, I.S., who has special medical

needs, was about one month old and later filed a petition to terminate Mother’s

parental rights when she stopped participating in services. Mother now appeals

the termination of her parental rights, arguing that the evidence is insufficient.

Finding the evidence sufficient, we affirm.

Facts and Procedural History
[2] Mother has a history of substance abuse dating back to 2011. She tested

positive for cocaine in July 2014, when she was pregnant with I.S.1 I.S. was

then born on September 19, 2014. C.S. (“Father”) is the father of I.S.2 At birth,

I.S. was diagnosed with cloverleaf skull syndrome, which is a subset of

craniosynostosis, and underwent corrective surgery; I.S. has special medical

needs and will require additional surgeries as well.3

1
At this time, Mother had a pending CHINS case in another county regarding two of her children who had
been removed from her care due to her drug use. The White Circuit Court terminated Mother’s parental
rights to these children on March 31, 2015. Ex. Vol. 3, Ex. 19 & 20.
2
Although Father’s parental rights were also terminated below, he is not a party to this appeal. Accordingly,
this opinion mainly discusses those facts relevant to Mother.
3
The juvenile court explained that I.S.’s developmental delays have become more apparent as she has grown
and noted that she specifically struggles with hearing and speech.

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[3] In October 2014, DCS received a report that Mother and I.S. were at a gas

station; Mother appeared impaired, and I.S. was not appropriately dressed for

the weather. In December, DCS filed a petition alleging that I.S. was a child in

need of services (CHINS). Mother and Father were ordered to submit to drug

screens, maintain communication with DCS, and allow DCS to make

unannounced visits to their home.

[4] In January 2015, while the CHINS petition was pending, DCS requested to

take I.S. into custody based on Mother’s and Father’s unwillingness to

communicate with DCS regarding I.S.’s medical needs, their failure to submit

to drug screens, and their failure to cooperate with home visits to assess I.S.’s

safety. The juvenile court authorized DCS to take temporary custody of I.S.

[5] In February 2015, the juvenile court held a fact-finding hearing and found that

I.S. was a CHINS. The court placed I.S. in foster care. A dispositional hearing

was then held, following which the court ordered I.S. to remain in foster care

and entered a parental-participation decree that required Mother to, among

other things: (1) not consume drugs or alcohol; (2) submit to random drug

screens upon request of DCS, CASA, or other service providers; (3) complete a

mental-health assessment and follow all recommendations; (4) notify DCS of

any prescriptions and take all medications as prescribed; (5) participate in case

management and follow all recommendations; (6) participate in visitation

pursuant to agreement by the parties; and (6) continue NA/AA meetings and

provide verification to DCS.

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[6] The juvenile court found Mother in contempt in April 2015 for failing to attend

scheduled case-management appointments and failing to submit to drug

screens. To purge the contempt, Mother was remanded to the Tippecanoe

County Jail, to be released upon admission to Home with Hope or another

inpatient treatment facility.

[7] Mother was again found in contempt in July 2015. The juvenile court found

that Mother had a diluted drug screen on June 7, was unsuccessfully discharged

from Home with Hope on June 11, did not attend a scheduled visit with I.S. on

June 15 and was unsuccessfully discharged from visitation services because it

was her third missed visit, and tested positive for drugs on June 16. To purge

the contempt, Mother was ordered to complete the Lighthouse Recovery

program. In the event Mother did not successfully complete the program, the

court ordered Mother to serve thirty days in jail.

[8] At a permanency-planning hearing in mid-September 2015, the juvenile court

noted that Mother was twenty-six weeks pregnant. The court ordered Mother

to immediately obtain prenatal care and follow her provider’s

recommendations. The court admonished Mother that continued drug use

during her pregnancy may result in a contempt finding and incarceration.

[9] About ten days later, the juvenile court found Mother in contempt—for a third

time—for failing a drug screen and being discharged from Lighthouse

Recovery. The court sentenced her to the Tippecanoe County Jail for forty-five

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 days, pending early release if she was admitted directly into a residential

treatment program.

[10] Mother gave birth on November 27, 2015. Mother was living in a homeless

shelter at the time. The child was immediately placed in a guardianship with

the paternal grandmother.

[11] In December 2015, Mother and Father moved into an apartment in Lafayette.

Mother started missing scheduled appointments and visits around this time,

too. By January 2016, Mother tested positive for methamphetamine. In order

to ensure I.S.’s safety during visits, Mother was ordered to submit to drug

screens before each scheduled visit. Mother did not submit to such drug screens

and has not seen I.S. since January 2016.

[12] On February 22, 2016, DCS filed a petition to terminate Mother’s and Father’s

parental rights to I.S. Shortly thereafter, Mother and Father were evicted from

their apartment. Father then moved in with his father in Chicago; Mother

joined them at the end of May.

[13] A two-day termination hearing was held in June and August 2016. Mother

testified that since moving to Chicago, she had been employed full time at a

restaurant, sober, and attending AA/NA meetings five times a week. The

court-appointed special advocate (CASA) Suzanne Magnante, who had been

involved in the case since December 2014 when the CHINS petition was filed,

testified that Mother was “unsuccessfully discharged from every service that she

began” and “did not complete any of her services.” Tr. p. 168. The CASA said

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 that sobriety was “absolute[ly] paramount” to Mother’s success, yet Mother did

not successfully complete any such program. Id. The CASA noted that Mother

stopped submitting records, including proof that she had been attending

AA/NA meetings in Chicago, to DCS in February 2016. Id. Accordingly, the

CASA testified that despite Mother’s testimony, she had “no evidence” that

Mother was now sober or had appropriate housing. Id. at 172. The CASA also

discussed I.S.’s “very serious” condition and her belief that Mother could not

meet I.S.’s needs in a safe and healthy fashion. Id. at 170. Finally, the CASA

testified that it was in I.S.’s best interests for Mother’s parental rights to be

terminated and for I.S. to be adopted by her current foster parents. The DCS

family case manager, Sara Atchison, likewise believed that it was in I.S.’s best

interests for Mother’s parental rights to be terminated. Id. at 150.

[14] The juvenile court issued an order terminating Mother’s parental rights to I.S.

in November 2016. The court found:

20. Although Mother produced several negative samples during
the CHINS proceeding, Mother tested positive for the presence of
drugs on 07/18/2014 (cocaine), 01/21/2015 (dilute sample),
01/21/2015 (dilute sample), 02/05/2015 (opiates-
hydrocodone/EtG), 04/07/2015 (opiates-dilute sample),
04/07/2015 (opiates-dilute sample), 06/07/2015 (dilute sample),
06/16/2015 (opiates), 08/27/2015 (tramadol), 09/15/2015
(opiates-hydrocodone/hydromorphone), 01/04/2016 (opiates-
6MAM/morphine), 02/08/2016 (amphetamine/
methamphetamine/opiates-morphine), and 04/25/2016
(cocaine/oxycodone).

*****

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 27. . . . Neither parent has visited the child since January 2016.
Both parents were discharged from visitation services due to
cancellation. . . .

*****

31. Mother’s history of employment has been sporadic. Mother
reports employment at a restaurant in Chicago making
approximately $480.00 per week. Mother reports paying rent to
Paternal Grandfather in the sum of $100.00 per week. Mother’s
driver’s license is suspended. Mother reports she is unable to
travel to Lafayette from Chicago and admits failing to maintain
contact with DCS.

*****

33. Neither parent is enrolled in treatment in Chicago other than
attending AA/NA meetings. Neither parent has a sponsor.
Mother reports working on Step Three (3) but is unable to define
it. . . . Mother reports remaining sober while in Chicago.

34. During separate periods of the CHINS case, each parent
demonstrated short-term periods of sobriety and began to
approach stability. However, consistent with prior history,
neither parent was able to sustain progress. The recent and short
period of reported employment, housing, and limited drug use
does not outweigh a lengthy history of instability. Every child
born of these parents has been exposed to parental substance use.
...

35. As of the termination hearing in August 2016, neither parent
was attempting to engage in services and had maintained only
limited contact with DCS. Neither parent provided verification
regarding reported housing, employment, or Twelve (12) Step

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 Meetings. Both parents failed to make arrangements for the
collection of court-ordered drug screens.

Appellant’s App. Vol. II pp. 11-13 (emphases added). Accordingly, the court

concluded:

1. There is a reasonable probability the conditions that resulted in
removal of the child from the home or the reasons for continued
placement outside the home will not be remedied. Neither
parent has demonstrated the ability or willingness to make
lasting changes from past behaviors. There is no reasonable
probability that either parent will be able to maintain stability
in order to care and provide adequately for the child.

*****

4. [I]t is in the best interests of [I.S.] that the parental rights of
[Mother] . . . be terminated.

Id. at 14 (emphasis added).

[15] Mother now appeals.

Discussion and Decision
[16] Mother contends that there is insufficient evidence to support termination of

her parental rights to I.S. When reviewing the termination of parental rights,

we do not reweigh the evidence or judge witness credibility. In re K.T.K., 989

N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the evidence and

reasonable inferences that are most favorable to the judgment of the trial court.

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 Id. When a trial court has entered findings of fact and conclusions, we will not

set aside the trial court’s findings or judgment unless clearly erroneous. Id. To

determine whether a judgment terminating parental rights is clearly erroneous,

we review whether the evidence clearly and convincingly supports the trial

court’s findings and whether the findings clearly and convincingly support the

judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).

[17] A petition to terminate parental rights must allege, 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
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).

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 I. Reasonable Probability That the Conditions Resulting
in Removal or the Reasons for Placement Outside the
Home Will Not Be Remedied
[18] Mother first argues that there is insufficient evidence to support the juvenile

court’s conclusion that there is a reasonable probability that the conditions that

resulted in I.S.’s removal or the reasons for placement outside the home will not

be remedied.4 In determining whether the conditions that resulted in the child’s

removal will not be remedied, the juvenile court engages in a two-step analysis.

“The court first identifies the conditions that led to removal and then

determines whether there is a reasonable probability that those conditions will

not be remedied.” In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct. App.

2016) (citing In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)). A parent’s fitness is

measured at the time of the termination hearing and changed circumstances are

balanced against habitual conduct to see if there is a “substantial probability of

future neglect or deprivation.” Id.

[19] Mother argues that the juvenile court failed to take into account her “changed

circumstances at the time of the termination hearing,” specifically that she

“moved into a stable home environment, was employed with steady income,

4
Mother also argues that there is insufficient evidence to support the trial court’s conclusion that there is a
reasonable probability that continuation of the parent-child relationship poses a threat to I.S.’s well-being.
Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires clear and convincing
evidence of only one of the circumstances listed in subsection (B). See In re C.C., 788 N.E.2d. 847, 854 (Ind.
Ct. App. 2003), trans denied. Because we conclude that there is sufficient evidence to support the trial court’s
conclusion that there is a reasonable probability that the conditions resulting in I.S.’s removal will not be
remedied, we do not address this argument.

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 and was addressing her drug addiction through weekly NA and AA meetings.”

Appellant’s Br. p. 12. To the contrary, the juvenile court specifically

acknowledged Mother’s testimony but noted that she did not provide

“verification” regarding her reported housing, employment, or twelve-step

meetings. Appellant’s App. Vol. II p. 13 (Finding No. 35). And to the extent

Mother had improved her circumstances between the time she moved to

Chicago in late May 2016 and the August 2016 termination hearing, the court

found that “[t]he recent and short period of reported employment, housing and

limited drug use does not outweigh a lengthy history of instability.” Id.

(Finding No. 34). The juvenile court was within its discretion to disregard

efforts made only shortly before termination and to put more weight on

Mother’s history of conduct before those efforts were made. The evidence is

sufficient to support the juvenile court’s conclusion that there is a reasonable

probability that the conditions that resulted in I.S.’s removal or the reasons for

placement outside the home will not be remedied.

II. Best Interests
[20] Mother also argues that there is insufficient evidence to support the juvenile

court’s conclusion that termination of her parental rights is in the best interests

of I.S. To determine what is in a child’s best interests, the juvenile court must

look to the totality of the evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind.

Ct. App. 2013), trans. denied. In doing so, 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.

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[21] In support of her argument that termination is not in the best interests of I.S.,

Mother again points to her testimony that she has made “considerable strides”

since moving to Chicago. Appellant’s Br. p. 14. However, the

recommendation by both a case manager and a CASA 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., 987 N.E.2d at 1158-59.

Here, both the CASA and the family case manager testified that termination is

in the best interests of I.S. And, as we have already addressed, the evidence is

sufficient to support the juvenile court’s conclusion that there is a reasonable

probability that the conditions that resulted in I.S.’s removal or the reasons for

placement outside the home will not be remedied. Accordingly, the evidence is

also sufficient to support the court’s conclusion that termination is in I.S.’s best

interests.

[22] Affirmed.

Bailey, J., and Robb, J., concur.

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