In re the Termination of the Parent-Child Relationship of A.M. (Minor Child) and B.S. (Mother) B.S. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Feb 26 2019, 8:22 am

court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jessica L. Hoover Curtis T. Hill, Jr.
Law Office of Jessica L. Hoover, LLC Attorney General
Remington, Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Termination of the
Parent-Child Relationship of February 26, 2019
A.M. (Minor Child) and Court of Appeals Case No.
B.S. (Mother) 18A-JT-1877
B.S. (Mother), Appeal from the Jasper Circuit
Court
Appellant-Respondent,
The Honorable John D. Potter,
v. Judge
Trial Court Cause No.
Indiana Department of Child 37C01-1805-JT-103
Services,
Appellee-Petitioner

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1877 | February 26, 2019 Page 1 of 12
 Case Summary
[1] B.S. (“Mother”) appeals the termination of her parental rights to her daughter,

A.M. (“Child”). We affirm.

Facts and Procedural History
[2] Mother and F.M. (“Father”) are the biological parents of Child, born in May

2010, and I.M. (“Sibling”), born in December 2016.1 Father’s parental rights

were also terminated; however, Father does not participate in this appeal, and

we therefore limit our narrative to the facts relevant to Mother. The facts that

follow are taken primarily from the trial court’s findings of fact, none of which

Mother challenges on appeal.2

[3] In August 2017, the Indiana Department of Child Services (DCS) received a

report that Mother was homeless, Child had not been enrolled in school, and

Mother did not have proper food for nine-month-old Sibling. Just over a week

later, DCS received a second report alleging that Mother physically abused

Child, slept excessively, suffered from depression, left Child unattended, and

left Child in the care of her mother (“Grandmother”). Grandmother used drugs

1
The trial court terminated Mother’s parental rights to Sibling in a separate order. Although the facts and
procedural history of Sibling’s case are identical to Child’s, Mother appealed the termination of her parental
rights to Sibling in a separate appeal, which this Court recently affirmed. See In re I.M., Case No. 18A-JT-
1878 (Ind. Ct. App. Feb. 20, 2019). We therefore limit our narrative to the facts relevant to Child.
2
Because Mother does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v.
Arko, 592 N.E.2d 686, 687 (Ind. 1992).

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 and neglected Child when she was in her care. On September 6, Mother tested

positive for tetrahydrocannabinol (THC), the active ingredient in marijuana.

DCS opened an informal adjustment with Mother on September 21, and

Mother agreed to complete services to “alleviate the reasons for [DCS]

involvement.” Tr. p. 45.

[4] Just over two weeks later, Mother was arrested after a traffic stop where she

was found in possession of drug paraphernalia. While in custody, Mother told

DCS that Sibling was with Father, but later DCS found Sibling with Mother’s

aunt. The day after Mother’s arrest, Child was removed and DCS filed a

petition alleging that Child was a child in need of services (CHINS). The

CHINS petition alleged, in part:

a. That the family entered into an Informal Adjustment with the
DCS on or about September 21, 2017, and since that date
[M]other tested positive for marijuana.

b. That on or about October 10, 2017, Family Case Manager
Holly Ammann (“FCM Ammann”) learned that [M]other was
incarcerated at the Newton County Jail. FCM Ammann went
and spoke with [M]other at the Newton County Jail and
[M]other informed her that she was pulled over for speeding and
that she was arrested for possession of paraphernalia along with
her mother and uncle.

c. That when FCM Ammann asked [M]other where [Sibling]
was [M]other was dishonest stating [Sibling] was being watched
by [Father], DCS was eventually able to locate [Sibling] with
[M]other’s aunt.

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 d. That [Child] has had five unexcused absences from school
along with her being tardy eight times since school started on
August 28, 2017.

Appellant’s App. Vol. II p. 8. On October 11, the trial court held an initial

detention hearing. Mother admitted the allegations in the CHINS petition, and

the trial court determined that Child was a CHINS. See id. at 11. The trial

court found that the removal of Child was authorized and necessary to protect

Child. Following a dispositional hearing in November, the trial court ordered

Mother to participate in numerous services with the goal of reunification with

Child. See id. at 14-19.

[5] In April 2018, the trial court held a review hearing. Following the hearing, the

trial court found, in relevant part:

[Mother] ha[s] not complied with [C]hild’s case plan. [Mother]
has been non-compliant with service providers and does not
maintain contact with DCS.

[Mother] ha[s] not enhanced [her] ability to fulfill [her] parental
obligations. [Mother] has been non-compliant with services.

[Mother] ha[s] not visited [Child]. [Mother] has only
participated in 9.25 hours of the offered 55 hours of visitation
with [Child].

[Mother] ha[s] not cooperated with DCS.

Id. at 20. The trial court conducted a permanency hearing in May and found

that Mother had not complied with Child’s case plan, failed to submit to regular
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 random drug screens or participate in ordered services, and remained

unemployed without housing for Child. See id. at 22. The trial court approved

DCS’s request to change Child’s permanency plan “from reunification to

adoption.” Id. at 23. Thereafter, DCS filed a petition to terminate Mother’s

parental rights to Child.

[6] In July, the trial court held a fact-finding hearing on the termination petition.

After the hearing, the trial court issued an order on July 13 terminating

Mother’s parental rights to Child. The order provides, in relevant part:

There is a reasonable probability that the conditions that
resulted in [Child’s] removal or the reasons for the placement
outside the parent’s home will not be remedied in that:

a. Mother continued to test positive for illegal drugs throughout
the CHINS case including THC and cocaine. Mother also tested
positive for THC while currently pregnant.

*****

c. Mother only met with her homemaker services worker once
and had several no-call, no-shows to appointments. Mother still
does not have appropriate housing and is still not employed.

d. Mother’s first therapist was never able to start individual
therapy over a two month period due to difficulty contacting
[M]other despite calling, texting, and making visits to the home.

*****

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 g. Mother was inconsistent with visitation, [M]other only
attended five out of thirty-nine visitations, the last being in
January of 2018.

h. Mother did not attend any counseling sessions after her initial
intake and she failed to attend any intensive outpatient treatment
sessions.

*****

m. Mother did not contact DCS from December 21, 2017, until
March 18, 2018, except for at court appearances.

n. In March 2018, [M]other informed DCS by text that she was
homeless and paperwork could be sent to an address in East
Chicago.

o. Mother admitted she continued to use drugs because
[Children] were taken away and it was hard.

p. Mother never asked DCS to move services closer to her when
she lived in East Chicago.

q. Mother[’s] relationship with the man she was living with after
removal involved daily fighting where [M]other would leave and
then return.

There is a reasonable probability that continuation of the
parent-child relationship poses a threat to the well-being of
[Child] in that:

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 a. Mother only met with her homemaker service provider to find
housing and employment once and then no-called or no-showed
the remainder of the appointments.

b. Mother’s first therapist had great difficulty contacting
[M]other despite numerous calls, texts, and visits to the home
over a two month period and [M]other never began individual
therapy.

*****

e. [Mother] was inconsistent with visitation and only attended
five out of thirty-nine visitations, the last of which was in January
of 2018.

f. Mother never attended individual therapy or intensive
outpatient drug treatment after the initial intake appointment.

*****

h. Mother admitted she continued to use drugs because [Child
and Sibling] were taken away and it was hard.

*****

Termination is in the . . . best interests of [Child] in that:

*****

d. Mother continues to maintain a lifestyle that necessitated the
informal adjustment and then removal in 2017.

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 e. Mother who is currently pregnant, still continues to use illegal
drugs.

f. Mother did not participate in any of the mental health services
that were provided.

g. Mother does not have a stable residence and has lived with
various people with no home of her own.

h. Mother’s rate of attendance . . . as to visits is less than twenty
percent.

i. Mother is not ready to address her problems as she testified it
was all the other people around her in her life causing the
problems.

Id. at 29-31 (emphases added).

[7] Mother now appeals.

Discussion and Decision
[8] 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. 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

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 the evidence supports the trial court’s findings and whether the findings support

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

[9] 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). DCS must prove the alleged circumstances by

clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court

finds that the allegations in a petition are true, the court shall terminate the

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

[10] First, Mother argues there is insufficient evidence to support the trial court’s

conclusion that the conditions resulting in Child’s removal will not be

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

removal will not be remedied, the trial 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 patterns of conduct to see if there is a “substantial

probability of future neglect or deprivation.” Id. Trial courts have discretion to

weigh a parent’s history more heavily than efforts made shortly before

termination, and the court may find that a parent’s past behavior is the best

predictor of future behavior. Id.

[11] Here, Mother failed to demonstrate that she was any closer to providing Child a

safe, stable home than she was at the beginning of the CHINS case. The

evidence shows that Mother failed to engage with DCS, refused to participate in

services, and was unable to combat her substance-abuse issues. See Tr. p. 47.

The trial court’s unchallenged findings on this issue support its conclusion that

the conditions resulting in Child’s removal will not be remedied. See, e.g., In re

E.M., 4 N.E.3d at 644 (findings regarding father’s continued non-compliance

with services support trial court’s conclusion that conditions resulting in

children’s removal from father’s care would not be remedied). To the extent

that Mother argues that she recently attempted to engage in services, the trial

court was well within its discretion to disregard the efforts Mother made only

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 shortly before termination and to weigh more heavily Mother’s history of

conduct before those efforts. See In re K.T.K., 989 N.E.2d at 1234.

Accordingly, the trial court did not err when it concluded that there is a

reasonable probability that the conditions resulting in removal will not be

remedied.3

[12] Next, Mother argues that the trial court erred in concluding that termination is

in Child’s best interests. To determine what is in the child’s best interests, the

trial 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 trial court must

subordinate the interests of the parent to those of the child. Id. The trial court

need not wait until a child is irreversibly harmed before terminating the parent-

child relationship. In re Z.B., 108 N.E.3d 895, 903 (Ind. Ct. App. 2018), trans.

denied. “Moreover, the testimony of service providers may support a finding

that termination is in the child’s best interests.” Id. (citing McBride v. Monroe

Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).

[13] Here, in addition to Mother’s substance-abuse issues that necessitated DCS

involvement and her complete lack of progress since then, FCM Ammann

testified that terminating Mother’s parental rights would serve the best interests

3
Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
resulted in Child’s removal will not be remedied, we do not address its alternate conclusion that there is a
reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of
Child. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive and requires the trial court to find only one of the two requirements of subsection
(B) has been established by clear and convincing evidence), trans. denied.

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 of Child. See Tr. p. 53. Furthermore, the trial court found that Mother is not

ready to accept responsibility for her problems as Mother testified that “it was

all the other people around her in her life causing the problems.” Appellant’s

App. Vol. II p. 31; see also In re A.P., 981 N.E.2d 75, 82-83 (Ind. Ct. App. 2012).

Accordingly, the trial court did not err when it concluded that termination is in

Child’s best interests.

[14] Affirmed.

Mathias, J., and Crone, J., concur.

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