In Re: The Termination of the Parent-Child Relationship of L.C., F.T., and M.R. (Minor Children) S.C. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 27 2020, 9:23 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ana M. Quirk Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re: The Termination of the August 27, 2020
Parent-Child Relationship of Court of Appeals Case No.
L.C., F.T., and M.R. (Minor 20A-JT-533
Children); Appeal from the Delaware Circuit
S.C. (Mother), Court
The Honorable Kimberly S.
Appellant-Respondent,
Dowling, Judge
v. The Honorable Amanda Yonally,
Juvenile Magistrate
Trial Court Cause Nos.
The Indiana Department of
18C02-1905-JT-112
Child Services, 18C02-1905-JT-113
Appellee-Petitioner. 18C02-1905-JT-114

Pyle, Judge.

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 Statement of the Case
[1] S.C. (“Mother”) appeals the termination of the parent-child relationships with

her daughters, L.C. (“L.C.”), F.T. (“F.T.”), and M.R (“M.R.”) (collectively

“the children”). Mother argues that her due process rights were violated

because the Department of Child Services (“DCS”) failed to make reasonable

efforts to preserve the parent-child relationships and that there is insufficient

evidence to support the terminations. Concluding that DCS did not violate

Mother’s due process rights and that there is sufficient evidence to support the

terminations, we affirm the trial court’s judgment.1

[2] We affirm.

Issues
1. Whether Mother’s due process rights were violated
because DCS failed to make reasonable efforts to preserve
her parent-child relationships with the children.

2. Whether there is sufficient evidence to support the
termination of the parent-child relationships.

Facts
[3] The facts most favorable to the termination reveal that Mother is the parent of

L.C., who was born in July 2008; F.T., who was born in August 2011; and

1
L.C.’s father is deceased, and F.T.’s father’s parental rights were terminated in an unrelated proceeding.
We affirmed the termination of M.R.’s father’s (“M.R.’s Father”) parental relationship with M.R. in a
companion case handed down contemporaneously with this case. See In the Matter of the Involuntary
Termination of the Parent-Child Relationship of M.R., Appellate Cause Number 20A-JT-510.

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 M.R., who was born in February 2016. In February 2015, L.C. and F.T. were

under the guardianship of maternal grandmother (“Maternal Grandmother”).

In February 2016, the trial court adjudicated the two girls to be children in need

of services (“CHINS”) because Maternal Grandmother was allowing Mother,

who was using illegal drugs, to have unsupervised contact with the children in

violation of the guardianship order. L.C. and F.T. were returned to Mother in

March 2016, and the CHINS case was later closed.

[4] Following L.C.’s and F.T.’s return to Mother and M.R.’s birth, Mother, M.R.’s

Father, and the children lived with Maternal Grandmother at Maternal

Grandmother’s house. DCS removed the children in October 2016 because of

Mother’s and M.R.’s Father’s drug use. DCS placed the children in foster care.

Mother admitted that she had been using morphine, heroin, pain medication

and THC, and M.R.’s Father was using suboxone without a prescription. The

trial court adjudicated the children to be CHINS in October 2016.

[5] Mother, who had been unsuccessfully discharged from a Meridian Health

Services (“Meridian”) outpatient substance abuse program in April 2016, began

an inpatient detoxification and treatment program in November 2016. After

she had successfully completed the program, DCS referred her to an intensive

outpatient substance abuse program at Meridian in November 2016.

[6] In March 2017, the trial court issued a CHINS dispositional order. The trial

court’s order required Mother to: (1) participate in DCS-referred programs; (2)

participate in substance abuse therapy; (3) successfully complete the addiction

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 services recommended by Meridian; (4) attend visitation with the children; (5)

abstain from the use of illegal substances; (6) submit to random drug screens;

(7) maintain suitable, safe, and stable housing; and (8) secure and maintain a

legal and stable source of income. The plan for Mother and the children was

reunification.

[7] After the trial court issued the dispositional order, Mother began attending the

intensive outpatient program at Meridian. However, three weeks later, the

outpatient program therapist removed Mother from the program because

Mother had continued to use illegal substances.

[8] Two months later, in May 2017, DCS referred Mother to individual substance

abuse counseling and an intensive outpatient program, both at Centerstone

(“Centerstone”). Mother sporadically participated in both programs until

August 2018. During that time, Mother continued to use illegal substances.

When other patients in the outpatient program reported that Mother was

“trying to sell or share substances,” Mother was unsuccessfully discharged from

the outpatient program. (Tr. Vol. 2 at 42). Although Mother’s therapist offered

her the opportunity to continue in individual therapy, she chose not to return to

Centerstone.

[9] In early 2019, DCS referred Mother back to Meridian for substance abuse

services, and Mother participated in another intensive outpatient program. In

March 2019, Mother was suspended from the program because she was using

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 methamphetamine. Mother did not attend a meeting to discuss reinstatement

to the program and continued to test positive for methamphetamine.

[10] In April 2019, the trial court issued an order “absolv[ing] [DCS] of any

responsibility for providing any reunification services to [Mother].” (Tr. Vol. 2

at 160). In May 2019, DCS filed a petition to terminate the parental

relationships between Mother and the children.

[11] The trial court held a two-day factfinding hearing in August and November

2019. Testimony at the hearing detailed Mother’s history of substance abuse

and her more than three-year history of failed attempts at substance abuse

treatment. Between 2016 and August 2019, Mother had sixty-six positive drug

screens for illegal substances, including positive screens for methamphetamine

in June and July 2019 after DCS had filed the termination petition.

[12] In addition, the testimony revealed that Mother had never progressed to

unsupervised visitation with the children during the course of the proceedings.

In early 2019, L.C. told the DCS case manager, the CASA, her therapist, and

her foster parents that she no longer wanted to attend visits with Mother.

Thereafter, L.C. was allowed to decide whether she would attend visits with

Mother and she never attended another one. By May 2019, F.T. “was getting

unstable and not wanting to go to visits [with Mother] anymore.” (Tr. Vol. 2 at

98). During visits, F.T. was angry with Mother for using drugs. Neither F.T.

nor M.R. wanted to hug or kiss Mother, and F.T. stated that she wanted to live

with her foster parents. The visitation supervisor specifically described the

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 relationship between F.T. and Mother as “broken.” (Tr. Vol. 2 at 96). During

a June 2019 visit, the visitation supervisor suspected that Mother was under the

influence of drugs and told the DCS family case manager about her suspicion.

The DCS case manager asked Mother to take a drug test, which was positive

for methamphetamine.

[13] The testimony at the termination hearing also revealed that the children were

thriving in foster care. Foster parents had taken the two oldest girls, eleven-

year-old L.C. and eight-year-old F.T. to a mental health therapist without

waiting for a referral from DCS. L.C. suffered from the trauma of Mother’s

drug use and had memories of Mother choking her while Mother was

intoxicated. F.T. scratched herself, had temper tantrums, bit her fingernails,

and put her hands down her pants. The therapist was working with F.T. to

develop healthy coping skills and to manage trauma triggers. The therapist

observed that the interactions between the children and their foster parents were

positive and that the foster parents were very supportive of the children. The

therapist specifically testified that she had seen “nothing but good” with respect

to the foster parents. (Tr. Vol. 2 at 31). The plan for the children was foster

parent adoption.

[14] At the second day of the termination hearing in November 2019, Mother

testified that she had been living in a house with her former stepfather and had

been working for the previous four months. She had a full-time job as a gas

station attendant and a part-time job as a secretary. Mother had also been

taking methadone for four months and participating in treatment at a

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 methadone clinic. Additionally, Maternal Grandmother testified that it was not

in the children’s best interests to terminate Mother’s parental rights.

[15] In February 2020, the trial court issued three detailed orders terminating

Mother’s parental relationships with the children. Mother now appeals the

terminations.

Decision
[16] Mother argues that her due process rights were violated because DCS failed to

make reasonable efforts to preserve the parent-child relationships and that there

is insufficient evidence to support the terminations. We address each of her

contentions in turn.

1. Reasonable Efforts and Due Process

[17] Mother argues that DCS failed to make reasonable efforts to preserve the

parent-child relationships, resulting in a violation of her due process rights.

When DCS seeks to terminate parental rights, “it must do so in a manner that

meets the prerequisites of due process.” In re J.K., 30 N.E.3d 695, 699 (Ind.

2015) (quotations and citations omitted). Whether due process has been

afforded in termination proceedings is determined by balancing the following

“three distinct factors” specified in Mathews v. Eldridge, 424 U.S. 319, 335

(1976): (1) the private interests affected by the proceeding; (2) the risk of error

created by the State’s chosen procedure; and (3) the countervailing

governmental interest supporting use of the challenged procedure. A.P. v. Porter

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 Cnty. Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000),

trans. denied.

[18] In S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013)

(citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)), this Court further explained

the Mathews factors as follows:

The private interest affected by the proceeding is substantial – a
parent’s interest in the care, custody, and control of his or her
child. And the State’s interest in protecting the welfare of a child
is also substantial. Because the State and the parent have
substantial interests affected by the proceeding, we focus on the
risk of error created by DCS’s actions and the trial court’s
actions.

[19] DCS must “make reasonable efforts to preserve and reunify families.” IND.

CODE § 31-34-21-5.5(b). In addition, “due process protections at all stages of

CHINS proceedings are vital because every CHINS proceeding has the

potential to interfere with the rights of parents in the upbringing of their

children.” In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (quotations and citations

omitted). “[T]hese two proceedings - CHINS and TPR - are deeply and

obviously intertwined to the extent that an error in the former may flow into

and infect the latter[.]” Id.

[20] However, the “failure to provide services does not serve as a basis on which to

directly attack a termination order as contrary to law.” In re H.L., 915 N.E.2d

145, 148 n.3 (Ind. Ct. App. 2009); see also In re E.E., 736 N.E.2d 791, 796 (Ind.

Ct. App. 2000) (“[T]he provision of family services is not a requisite element of

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 our parental rights termination statute, and thus, even a complete failure to

provide services would not serve to negate a necessary element of the

termination statue and require reversal.”). Further, a parent may not sit idly by

without asserting a need or desire for services and then successfully argue that

he or she was denied services to assist him or her with his or her parenting. In

re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000).

[21] Here, Mother appears to argue that DCS failed to make reasonable efforts to

preserve the parent-child relationships because it did not provide her with any

services after April 2019. As a preliminary matter, we note that the law is well

established that a party on appeal may waive a constitutional claim. McBride v.

Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 194 (Ind. Ct. App.

2003). For example, in In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App.

2001), this Court determined that a mother had waived her claim that the trial

court had violated her due process rights because she raised the constitutional

claim for the first time on appeal.

[22] Mother in this case did not object to any alleged deficiencies in the CHINS

process during the CHINS proceedings, nor did she argue during the

termination proceedings that those alleged deficiencies constituted a due

process violation. Rather, Mother has raised her due process claim for the first

time on appeal. She has therefore waived appellate review of this issue. See id.

[23] Waiver notwithstanding, our review of the record reveals that DCS offered

Mother the following services for more than three years: (1) multiple substance

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 abuse treatment referrals, including at least one referral to an inpatient

treatment program and at least four referrals to outpatient treatment programs;

(2) drug screens; and (3) supervised visitation with the children. DCS offered

Mother these services with a plan for family reunification. Three years later,

after Mother had failed to successfully complete the outpatient substance abuse

treatment programs and had continued to test positive for illegal drugs, DCS

stopped providing services to Mother and changed the plan for the children to

foster parent adoption. DCS offered Mother sufficient services in its attempt to

preserve and reunify Mother’s family. Based on the foregoing, Mother has not

established that her due process rights were violated.2

2. Sufficiency of the Evidence

[24] Mother also argues that there is insufficient evidence to support the termination

of her parental relationships with the children. The traditional right of parents

to establish a home and raise their children is protected by the Fourteenth

Amendment to the United States Constitution. In re J.W., Jr., 27 N.E.3d 1185,

1187-88 (Ind. Ct. App. 2015), trans. denied. However, a trial court must

2
We further note that Mother has not established that DCS engaged in conduct that adversely affected her ability
to participate in and complete services aimed at reunifying her with her daughters. Cf. In re T.W., 135 N.E.3d 607,
618 (Ind Ct. App. 2019) (concluding that the “insufficient process employed in the CHINS case created a risk of the
erroneous filing of a petition to terminate Father’s parental rights to [his child], in violation of Father’s due process
rights.”), trans. denied; Matter of C.M.S.T., 111 N.E.3d 207, 213 (Ind. Ct. App. 2018) (concluding that “the chaotic
and unprofessional handling” of a CHINS case violated the parents’ due process rights, requiring reversal of the
termination order); A.P., 734 N.E.2d at 1117 (finding parents’ due process rights were violated in a termination
proceeding where DCS made multiple procedural errors, such as failing to provide parents with copies of case plans
and filing CHINS and termination petitions that did not meet statutory requirements).

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 subordinate the interests of the parents to those of the child when evaluating the

circumstances surrounding a termination. Id. at 1188. Termination of the

parent-child relationship is proper where a child’s emotional and physical

development is threatened. Id. Although the right to raise one’s own child

should not be terminated solely because there is a better home available for the

child, parental rights may be terminated when a parent is unable or unwilling to

meet his or her parental responsibilities. Id.

[25] Before an involuntary termination of parental rights may occur, 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
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. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

1225, 1230 (Ind. 2013).

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[26] When reviewing a termination of parental rights, this Court will not reweigh

the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

628 (Ind. 2016). We consider only the evidence and any reasonable inferences

to be drawn therefrom that support the judgment and give due regard to the

trial court’s opportunity to judge the credibility of the witnesses firsthand.

K.T.K., 989 N.E.2d at 1229.

[27] We further note that, in determining whether to terminate a parent-child

relationship, trial courts have discretion to weigh a parent’s prior history more

heavily than efforts made only shortly before termination and may find that a

parent’s past behavior is the best predictor of future behavior. D.B.M. v. Ind.

Dep’t of Child Services, 20 N.E.3d 174, 181-82 (Ind. Ct. App. 2014), trans. denied.

We have also stated that the time for a parent to rehabilitate himself or herself is

during the CHINS process, before DCS files a termination petition. Prince v.

Dep’t of Child Services, 861 N.E.2d 1223, 1230 (Ind. Ct. App. 2007).

[28] In addition, as a general rule, appellate courts grant latitude and deference to

trial courts in family law matters. Matter of D.P., 72 N.E.3d 976, 980 (Ind. Ct.

App. 2017). “This deference recognizes a trial court’s unique ability to see the

witnesses, observe their demeanor, and scrutinize their testimony, as opposed

to this court[] only being able to review a cold transcript of the record.” Id.

[29] Here, Mother first argues that DCS has failed to prove by clear and convincing

evidence that: (1) there is a reasonable probability that the conditions that

resulted in the children’s removal or the reasons for their placement outside the

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 home will not be remedied; and (2) a continuation of the parent-child

relationships poses a threat to the children’s well-being.

[30] However, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

disjunctive. Therefore, DCS is required to establish by clear and convincing

evidence only one of the three requirements of subsection (B). In re A.K., 924

N.E.3d 212, 220 (Ind. Ct. App. 2010), trans. dismissed. We therefore discuss

only whether there is a reasonable probability that the conditions that resulted

in the children’s removal or the reasons for their placement outside the home

will not be remedied.

[31] In determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied, we engage in a two-step

analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

conditions that led to removal or placement outside the home and then

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. The second step requires a trial court to judge a parent’s

fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions and balancing any recent improvements against

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. Habitual conduct may include

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

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

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

trans. denied. The trial court may also consider services offered to the parent by

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 DCS and the parent’s response to those services as evidence of whether

conditions will be remedied. Id. Requiring a trial court to give due regard to

changed conditions does not preclude them from finding that a parent’s past

behavior is the best predictor of his or her future behavior. E.M., 4 N.E.3d at

643.

[32] Here, our review of the evidence reveals that the children were removed from

Mother because of her drug use. During the three-year pendency of the CHINS

proceedings, Mother was unsuccessfully discharged from at least four

outpatient substance abuse treatment programs and continued to use drugs.

After DCS filed the termination petition, Mother attended a supervised

visitation with F.T. and M.R. while under the influence of methamphetamine.

This evidence supports the trial court’s conclusion that there is a reasonable

probability that the conditions that resulted in the child’s removal or the reasons

for placement outside the home will not be remedied.

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

that termination was in the children’s best interests. In determining whether

termination of parental rights is in the best interests of a child, the trial court is

required to look at the totality of the evidence. In re D.D., 804 N.E.2d 258, 267

(Ind. Ct. App. 2004), trans. denied. In so doing, the court must subordinate the

interests of the parents to those of the child involved. Id. Termination of the

parent-child relationship is proper where the child’s emotional and physical

development is threatened. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App.

2002), trans. denied. The trial court need not wait until the child is irreversibly

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 harmed such that her physical, mental, and social development is permanently

impaired before terminating the parent-child relationship. In re E.S. 767 N.E.2d

1287, 1290 (Ind. Ct. App. 2002). In addition, a child’s need for permanency is

a central consideration in determining the child’s best interests. In re G.Y., 904

N.E.2d 1257, 1265 (Ind. 2009).

[34] Here, the entirety of Mother’s argument on this issue is that “there was no

evidence presented by DCS that the termination of the parent-child relationship

was in the best interest of the minor children. [Maternal Grandmother] testified

that it was not in their best interest to have the relationship terminated.”

(Mother’s Br. 19). Mother has waived appellate review of this issue because she

has failed to support it with cogent argument and relevant authority. See

Kentucky Nat’l. Ins. Co. v. Empire Fire and Marine Ins. Co., 919 N.E.2d 565, 598

(Ind. Ct. App. 2010) (holding that argument was waived for failure to cite

authority or provide cogent argument).

[35] Waiver notwithstanding, our review of the evidence reveals that the children

have been thriving in their pre-adoptive foster home for three years, and the two

oldest children no longer want to attend visitation with Mother. This evidence,

as well as the other evidence previously discussed, supports the trial court’s

conclusion that termination was in the children’s best interests.

[36] We reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake

has been made.” Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

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1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.

Affirmed.

Kirsch, J. and Tavitas, J., concur.

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