MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 10 2015, 8:20 am 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 David W. Stone IV Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the matter of the termination December 10, 2015 of the of the parent-child Court of Appeals Case No. relationship of: 48A02-1503-JT-156 A.H. & B.H. (Minor Children) Appeal from the Madison Circuit Court And The Honorable G. George Pancol, G.H. (Mother), Judge Appellant-Respondent, Trial Court Cause No. 48C02-1409-JT-58 & 48C02-1409- v. JT-59
The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 1 of 20 Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Respondent, G.H. (Mother), appeals the trial court’s Order
terminating her parental rights to her minor children, B.H. and A.H.
(collectively, Children).
[2] We affirm.
ISSUES
[3] Mother raises two issues on appeal, which we restate as follows:
(1) Whether the trial court erred by adopting the Department of Child Services’
(DCS) proposed findings verbatim; and
(2) Whether there was sufficient evidence to support the termination of
Mother’s parental rights.
FACTS AND PROCEDURAL HISTORY
[4] Mother and M.H. (Father) 1 are the biological parents of B.H., born June 30,
2005, and A.H., born July 16, 2008. On January 5, 2012, the DCS in Madison
County, Indiana, received a report that Father was on the run because there
was a warrant for his arrest. In light of that report, a law enforcement officer
was sent to Mother’s and Father’s home to conduct a welfare check. When the
1 On February 19, 2015, the trial court terminated Father’s parental rights to the Children. Father is not a party to this appeal, although facts relating to him are included where appropriate.
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 2 of 20 officer arrived, he found Mother unresponsive, and there was an unidentified
adult male taking drugs intravenously in the bathroom. Mother was
transported to the St. Vincent Mercy Hospital in Elwood, Indiana. Because
Father’s whereabouts were unknown, the Children were released to Mother’s
sister, M.G., (Aunty).
[5] The following day, Family Case Manager Matthew DeLong (FCM DeLong)
and a law enforcement officer of the Elwood Police Department went to visit
Mother at the hospital. Mother claimed that she could not recall the events of
the previous day but stated that she had intentionally overdosed with Zanex,
Opana, and Morphine in an attempt to end her life. Mother claimed that she
could not remember the Children being present at the time. On the same day,
FCM DeLong spoke with Mother’s relatives who explained that Mother
suffered from depression, and that she had in the past attempted to commit
suicide. Also, FCM DeLong interviewed the Children. The Children stated
that they were present when the officer arrived at their home, and they were
scared because Mother was unresponsive and had to go to the hospital. After
the interview, FCM DeLong explained to the Children that they were going to
stay with their maternal grandmother (Grandmother).
[6] On January 9, 2012, DCS filed separate petitions alleging that B.H. and A.H.
were children in need of services (CHINS) based on Mother’s attempt to
commit suicide and the lack of a secondary care giver in the home to ensure the
safety of the Children at the time. The next day, the trial court held a
detention/initial hearing where it continued the Children’s removal from
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 3 of 20 Mother’s care. On January 25, 2012, both Mother and Father attended an
additional initial hearing and subsequently admitted the allegations contained
in the CHINS petitions. As a result, the trial court maintained placement of the
Children with Grandmother. 2
[7] On February 15, 2012, the trial court held a dispositional hearing at which
Mother and Father were ordered to participate in counseling, visit the Children,
enroll in programs recommended by DCS, keep all appointments, complete
substance abuse assessment, submit to random drug screens, abstain from use
of illegal drugs, and maintain consistent contact with DCS. On July 25, 2012,
the trial court found both parents uncooperative with the Children’s case plans.
That they had not enhanced their ability to fulfil their parental obligations or
alleviated the conditions leading to the Children’s placement outside their
home. The trial court then set the permanency hearing date for both Children
on January 8, 2013. On January 30, 2013, the trial court issued a permanency
review order finding that Mother and Father had displayed some progress;
nonetheless, the order stated that parents had failed to attend a family team
meeting that was intended to discuss the implementation of a reunification
permanency plan for the Children. Based on that fact, the trial court continued
placement of the Children with Grandmother and set a joint periodic
review/permanency hearing for both Children on July 3, 2013.
2 Around that time, FCM Christin Myers (FCM Myers) replaced FCM DeLong.
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 4 of 20 [8] On February 25, 2013, DCS filed motions for change of placement alleging that
transferring the Children from their relative placement with Grandmother to
foster care was necessary due to frequent moves, utilities being turned off, and
that there were other people—who had not been cleared by DCS—living in
Grandmother’s home. On the same day, the trial court granted that motion.
On July 3, 2013, the trial court found that Mother and Father were still not
participating in the services and set a permanency hearing for B.H. on
December 11, 2013, and for A.H. on January 15, 2014.
[9] On August 21, 2013, DCS filed separate termination petitions with respect to
each child, and for the closure of its services. In the modification report dated
August 26, 2013, it stated that the Children were progressing well in foster care.
The report also stated that Mother had not complied with home-based services,
and FCM Myers had been unable to schedule a family team meeting since
Father had recently been incarcerated.
[10] On September 17, 2013, the trial court found that Mother had not made enough
progress to be reunited with the Children, whereas Father had participated
minimally since he was incarcerated. As such, the trial court granted DCS’
request to terminate its services. The record shows that the termination
petitions filed on August 21, 2013, were later dismissed on October 31, 2013,
due to Mother’s improved participation with the services, and that DCS
intended to give Mother more time to complete the services.
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 5 of 20 [11] On December 11, 2013, the trial court found that Mother was participating in
home-based services, counseling sessions, parental classes, substance abuse
counseling, and was visiting with the Children. An additional report dated
June 17, 2014, indicated that Mother was visiting with the Children and had
completed a substance abuse treatment program. Despite Mother’s progress,
the report stated that Mother was not regularly meeting with her home-based
case worker and that she needed to seek employment. As for Father, the report
noted that his whereabouts were unknown after his release from prison, and he
had failed to visit with the Children or participate in any of the services. Due to
the parents’ continued noncompliance, on September 26, 2014, DCS filed yet
another petition seeking to terminate Mother’s and Father’s parental rights, and
for the cessation of all its services. On December 10, 2014, the trial court
changed the permanency plan from reunification to adoption.
[12] An evidentiary hearing was held on January 27, 2015. Mother was present
with counsel; however, Father failed to appear in person, choosing to appear
only by Mother’s counsel. DCS’ attorney, FCM Myers, and the Children’s
court-appointed special advocate (CASA) were also in attendance. FCM Myers
stated that she was concerned since Mother could not remain sober for
sustained periods as she had relapsed to using drugs during the pendency of the
CHINS case. With regards to Father, FCM Myers testified that he had not
completed any of the services offered by DCS, his sobriety was an issue, and so
were his incarcerations. In addition, FCM Myers indicated that Father had not
visited with the Children throughout the entire CHINS proceedings. As such,
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 6 of 20 FCM Myers recommended the termination of parental rights. The CASA also
stated that she was concerned about Mother’s sobriety, as well as Mother’s
potential pending incarceration since Mother had violated her probation for
using non-prescribed drugs. Likewise, the CASA recommended that it would
be in the Children’s best interests to terminate parental rights. On February 19,
2015, adopting DCS’ proposed findings of fact and conclusions of law, the trial
court terminated Mother’s and Father’s parental rights.
[13] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[14] In reviewing the termination of a parent’s rights, it is a long-settled tenet of this
court that the trial court is entitled to considerable deference. In re D.B., 942
N.E.2d 867, 871 (Ind. Ct. App. 2011). Our court does not reweigh evidence or
assess the credibility of witnesses. In re G.Y., 904 N.E.2d 1257, 1260 (Ind.
2009), reh’g denied. Rather, we will consider only the evidence, and any
inferences reasonably derived therefrom, most favorable to the trial court’s
judgment. Id. In addition, Indiana Code section 31-37-14-2 requires that a
finding in a termination proceeding “be based upon clear and convincing
evidence.” Accordingly, in reviewing whether the trial court’s findings or
judgment are clearly erroneous, we must determine “whether the evidence
clearly and convincingly supports the findings and the findings clearly and
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 7 of 20 convincingly support the judgment.” In re I.A., 934 N.E.2d 1127, 1132 (Ind.
2010).
II. Adoption of DCS’ Proposed Findings of Fact
[15] Mother first argues that the trial court’s verbatim adoption of DCS’ proposed
findings was error. Trial Rule 52(C) encourages trial courts to request that
parties submit proposed findings of fact and conclusions of law, and it is not
uncommon or per se improper for a trial court to enter findings that are verbatim
reproductions of submissions by the prevailing party. Clark v. Crowe, 778
N.E.2d 835, 841 n.3 (Ind. Ct. App. 2002) (citing A.F. v. Marion Cnty. Office of
Family & Children, 762 N.E.2d 1244, 1249 (Ind. Ct. App. 2002), trans. denied).
When a party prepares proposed findings, he or she “should take great care to
insure that the findings are sufficient to form a proper factual basis for the
ultimate conclusions of the trial court.” Marathon Oil Co. v. Collins, 744 N.E.2d
474, 477 n.2 (Ind. Ct. App. 2001) (citing Maloblocki v. Maloblocki, 646 N.E.2d
358, 361 (Ind. Ct. App. 1995)). Moreover, “the trial court should remember
that when it signs one party’s findings, it is ultimately responsible for their
correctness.” Id. As noted by this court in Clark, we urge trial courts to
scrutinize parties’ submissions for mischaracterized testimony and legal
argument rather than the findings of fact and conclusions of law as
contemplated by the rule. 778 N.E.2d at 841 n.3.
[16] We encourage such scrutiny for good reason. As our supreme court has
observed, the practice of accepting verbatim a party’s proposed findings of fact
“weakens our confidence as an appellate court that the findings are the result of Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 8 of 20 considered judgment by the trial court.” Cook v. Whitsell-Sherman, 796 N.E.2d
271, 273 n.1 (Ind. 2003) (citing Prowell v. State, 741 N.E.2d 704, 708-09 (Ind.
2001)). However, as the court also noted, verbatim reproductions of a party’s
submissions are not uncommon, as “[t]he trial courts of this state are faced with
an enormous volume of cases and few have the law clerks and other resources
that would be available in a more perfect world to help craft more elegant trial
court findings and legal reasoning.” Prowell, 741 N.E.2d at 708. The need to
keep the docket moving is properly a high priority for our trial bench. Id. at
709. For this reason, the practice of adopting a party’s proposed findings is not
prohibited. Id. Thus, although we by no means encourage the wholesale
adoption of a party’s proposed findings and conclusions, the critical inquiry is
whether such findings, as adopted by the court, are clearly erroneous. See Saylor
v. State, 765 N.E.2d 535, 565 (Ind. 2002) (citing Woods v. State, 701 N.E.2d
1208, 1210 (Ind. 1998)).
[17] Mother concedes that the wholesale adoption of one party’s proposed findings
of fact is not error per se. However, Mother contends that the trial court’s
admission of the following findings relating to the initial removal of the Children
from her care was error: 3
Finding 8 b: Remaining in the home would be contrary to the welfare of the child because of Mother’s and Father’s inability, refusal, or neglect to provide shelter, care and/or supervision at
3 Mother also contends that the trial court erred in adopting Findings 14 p., 14 r., and 16 e. We decline to review those findings as they relate to Father.
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 9 of 20 the time;
Finding 8 c: Reasonable efforts to prevent or eliminate removal of the Child were made by DCS as set forth in the pleadings, documents, of DCS and/or all other service providers.
(Appellant’s App pp. 7, 8). 4 Mother maintains that the above findings are
factually inaccurate. We note that Mother has sparsely developed this
argument, thereby waiving it on appeal. See Ind. Appellate Rule 46(A)(8)(a).
Waiver notwithstanding, we find that the admission of the above findings was
not error. With respect to Finding 8 b, the record shows that the Children were
removed from Mother’s care when she attempted to end her life and the only
other adult present was taking drugs intravenously in the bathroom. As for
Finding 8 c, DCS argues that it took reasonable efforts to prevent or eliminate
removal of the Children from Mother’s care. Specifically, DCS notes that the
Children were only removed from Mother’s care after DCS assessed the
situation, i.e., Mother was unavailable since she had been admitted to the
hospital due to a drug overdose, and Father’s whereabouts were unknown.
Based on the foregoing, we find no error in the admission of the above findings.
[18] In addition, Mother challenges two findings relating to the Children’s continued
removal from her care:
4 As noted in the forgoing, the trial court entered separate findings of facts and conclusion of law terminating Mother’s parental rights for B.H. and A.H. Findings 8 b., 8c., 14, and 18 are identical as to each child.
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 10 of 20 Finding 14: Mother participated in supervised visits with the Child but providers raised concerns with her level of intoxication during visitations;
Finding 18: Mother has not maintained stable housing in the past three (3) years.
(Appellant’s App. pp. 15, 16). With regards to Finding 14, Mother argues that
she “had been groggy at one visit because she had not had any sleep the night
before because she had been . . . cleaning houses.” (Appellant’s Br. p. 7). At
the termination hearing, FCM Myers testified that visitations never advanced to
being unsupervised due to “ongoing concerns of [Mother’s] sobriety.” (Tr. p.
18). Specifically, FCM Myers stated that “the visit supervisor would notice that
Mother would be very tired or . . . seemed like she was falling asleep or under
the influence of something.” (Tr. pp. 18-19). Similarly, the evidence on record
supports that finding.
[19] Lastly, with respect to Finding 18, Mother claims that “she had resided with a
good friend . . . for a little over a year.” (Appellant’s Br. p. 8). Mother
contends that “staying with a friend of the family does not show a failure to
maintain stable housing and has no relevance as to whether she should lose her
parental rights . . .” (Appellant’s Br. p. 8). The record reveals that at the time of
the termination hearing, Mother lived with an older gentleman, T.S. Mother
claimed that T.S. was a family friend. Although Mother did not pay rent, she
stated that she assisted T.S. with house chores and paid some of the bills.
Mother indicated that prior to living with T.S., she had lived with friends.
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 11 of 20 [20] In support of her argument, Mother relies on Tipton v. Marion Cnty. Dep’t. of
Public Welfare, 629 N.E.2d 1262, 1267–68 (Ind. Ct. App. 1994), and Bester v.
Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 151 (Ind. 2005). In
Tipton, in terminating a father’s parental rights, the trial court found, among
other things, that the father failed to demonstrate that he maintained stable
housing. Tipton, 629 N.E.2d at 1267. The record showed that since the child’s
birth—a period of a little over four years—father had lived at three different
residences, all belonging to family members. Id. Three persons including father
lived at his grandmother’s house which had four bedrooms. Id. Four people
including father lived at his aunt’s home which had three bedrooms. Id. Father
paid rent when he lived at those places. Id. And at the time of the termination
hearing, father was living with his brother in a four-bedroom house with five
other people, including the child’s cousins. Id. Reversing the judgment of the
trial court, this court determined that the notion that father’s living arrangement
justified terminating his parental rights, “reflect[ed] a class or cultural judgment
. . . .” Id. [Instead], “[p]arental unfitness must be established on the basis of
individualized proof.” Id. at 1268. Noting that the trial court “did not
conclude that [father] could not provide his child with an adequate home
because he moved too frequently or that these places were not suitable for a
child,” this court concluded, “[t]he evidence offered on the matter of housing
does not support a reasonable inference that [father’s] living arrangements pose
or have ever posed a threat to the well-being of his child.” Id. at 1267-68. In
fact, the court observed that father’s living arrangement with his extended
family provided the child a “safety net.” Id. at 1268. Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 12 of 20 [21] In Bester, father lived with his parents for most of his life. Bester, 839 N.E.2d at
151. At the time of his child’s birth, father lived with mother in Indiana, and
shortly thereafter, he moved back to his parents’ house in East Hazel Crest,
Illinois. Id. Father resided with his parents until a home study was conducted.
Id. At that point, the family case manager informed father that, as a result of
the home study, he could no longer reside in his parent’s home if the child was
going to be placed there. Id. Father left and moved in with a friend for about
two months. Id. Thereafter, he moved to Chicago, Illinois to live with an aunt,
where he paid rent. Id. Our supreme court in this case found Tipton was
instructive, and it reversed the trial court since father had complied with all
DCS services and there was no evidence that the father’s “living arrangements
and his alleged lack of independence pose or have ever posed a threat to the
well-being of the child.” Id.
[22] Here, DCS maintains that Tipton and Bester are distinguishable from the present
case. We agree. Although we agree with Mother that DCS offered no kind of
particularized evidence that living with friends refutes her ability to maintain a
stable home for the Children, or that T.S.’s home was unclean or ever posed a
threat to the well-being of the Children, DCS offered evidence that they were
concerned about Mother being kicked out of T.S.’s home. The record shows
that Mother struggled with drugs, and T.S. had informed DCS that he would
kick her out if he found her using drugs. Shortly before the termination
hearing, Mother had relapsed. Based on that fact, DCS argued Mother’s
housing arrangement remained unstable. Equally, we find that the record
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 13 of 20 supports Finding 18, and we therefore find no error in the admission of that
finding.
II. Termination of Parental Rights
[23] The traditional right of parents to direct the care, custody, and control of their
“children is ‘perhaps the oldest of the fundamental liberty interests.’” In re G.Y.,
904 N.E.2d at 1259 (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). The
Fourteenth Amendment to the United States Constitution prevents the State
from unduly interfering with parents’ decisions regarding the upbringing of their
children. C.A. v. Ind. Dep’t. of Child Servs., 15 N.E.3d 85, 93 (Ind. Ct. App.
2014). However, parental rights are not absolute; in fact, they are “subordinate .
. . to the children’s interests when the children’s emotional and physical
development is threatened.” Lang v. Starke Cnty. Office of Family & Children, 861
N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied.
[24] A court may terminate parental rights “when parties are unable or unwilling to
meet their responsibility as parents.” In re A.I., 825 N.E.2d 798, 805 (Ind. Ct.
App. 2005), trans. denied. Because the termination of parental rights
permanently severs the parent-child relationship, it is an extreme sanction that
“is intended as a last resort, available only when all other reasonable efforts
have failed.” C.A., 15 N.E.3d at 92. The purpose of termination is to protect
the children, not to punish the parents. Lang, 861 N.E.2d at 371. In such cases,
Indiana law stipulates that DCS must establish, in part,
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 14 of 20 (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.
**** (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 each statutory element by clear
and convincing evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014).
A. Reasonable Probability That Conditions Will Not Be Remedied5
[25] Mother contends that there is insufficient evidence to support the trial court’s
conclusion that there is a reasonable probability that the conditions resulting in
the Children’s initial removal and placement in foster care will not be remedied.
5 We note that the involuntary termination statute is written in the disjunctive and requires proof of only one of the circumstances listed in Indiana Code section 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 Children outside the home will not be remedied. See I.C. § 31-35-2-4(b)(2)(B)(i).
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 15 of 20 In making this determination, a trial court should assess the “parent’s fitness to
care for his children at the time of the termination hearing, taking into
consideration evidence of changed conditions.” In re J.T., 742 N.E.2d 509, 512
(Ind. Ct. App. 2001), trans. denied. This entails an evaluation of “the parent’s
habitual patterns of conduct to determine the probability of future neglect or
deprivation of the child.” Id. The trial 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[,]” as
well as the parent’s response to any services offered by DCS. McBride v. Monroe
Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).
[26] Initially, DCS intervened and removed the Children due to Mother’s suicide
attempt. Mother claims that it is mere speculation that she might undertake
another suicide attempt. We note that subsection (b)(2)(B)(i) of the termination
statute requires that DCS must establish 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.” I.C. § 31-35-2-4(b)(2)(B)(i) (emphasis
added). “This language clarifies that it is not just the basis for the initial
removal of the child that may be considered for purposes of determining
whether a parent’s rights should be terminated, but also those bases resulting in
the continued placement outside of the home.” In re A.I., 825 N.E.2d at 806.
[27] The record indicates that this was not Mother’s first contemplated suicide. At
the start of the CHINS case, Mother’s relatives stated that Mother suffered from
depression, and she had made prior attempts to end her life. At the termination
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 16 of 20 hearing, Mother stated that her depression triggered her drug relapse. We note
that Mother’s drug addiction predates her early teenage years, and when DCS
became involved, it recommended Mother for substance abuse treatment. In
the fall of 2013, Mother successfully completed a drug treatment program at
Aspire. In March 2014, Mother self-referred herself for treatment. FCM Myers
stated that it was unclear why Mother enrolled herself into that clinic. After
only two months, Mother was discharged from the clinic after testing positive
for Xanax and marijuana. Mother had lied to FCM Myers about why she had
been dismissed from the clinic. In August 2014, DCS referred Mother back to
treatment. There is no indication of Mother ever resuming treatment, but there
is evidence that Mother was on probation for an unrelated matter. In October
2014, Mother violated her probation after testing positive for Benzodiazepines
and Buprenorphine and was incarcerated for about a month. Shortly before
Mother’s termination hearing, Mother had once again violated her probation by
testing positive for drugs in November 2014 and in December 2014.
[28] “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.” In re A.H., 832
N.E.2d 563, 570 (Ind. Ct. App. 2005). FCM Myers stated that Mother would
be consistent for a couple of months and then relapse. Here, we find that
Mother’s continued use of drugs does not bode well for her prospects of
successfully parenting the Children. Mother had numerous opportunities to
show that she could change her life around through treatment, but she has
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 17 of 20 failed to follow through. Based on the foregoing, we conclude that DCS
presented clear and convincing evidence to support the trial court’s findings and
ultimate determination that there is a reasonable probability the conditions
resulting in the Children’s removal and continued placement outside Mother’s
care will not be remedied. Mother’s arguments to the contrary, including her
arguments that she would not attempt to take her life again, or that she is
currently on medication for her depression, amounts to an invitation to reweigh
the evidence. See In re G.Y., 904 N.E.2d at 1260.
B. Best Interests
[29] Lastly, Mother argues that that there is insufficient evidence to support the trial
court’s conclusion that termination of the parent-child relationship is in the
Children’s best interests. In determining what is in the best interests of a child,
the trial court is required to look at the totality of the evidence. A.F., 762
N.E.2d at 1253. In doing so, the trial court must subordinate the interests of the
parent to those of the child involved. Id. The court need not wait until a child
is irreversibly harmed before terminating the parent-child relationship. Id.
Recommendations 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 a 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.
[30] Mother argues that she had subpoenaed her counselor to testify at the
termination hearing, but the counselor failed to appear. Mother further Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 18 of 20 contends that the counselor’s testimony would have corroborated her recent
depression treatment, which would, in turn, show that a drug relapse was
unlikely. The trial court heard Mother’s testimony in this regard, and Mother’s
current argument is merely an invitation for us to reweigh the evidence. See In
re G.Y., 904 N.E.2d at 1260.
[31] Turning to the facts of this case, both FCM Myers and the CASA testified that,
in their opinions, termination was in the Children’s best interests. See A.D.S.,
987 N.E.2d at 1158. FCM Myers stated, “I think [B.H.] and [A.H.] deserve to
be in a structured environment and stable environment that is drug free. And at
this point I do not believe that [Mother] would be able to provide that on a
consistent basis . . . due to multiple relapses.” (Tr. p. 24). Despite Mother’s
claim that she worked odd jobs and got paid under the table, FCM Myers
testified that Mother had failed to verify her income. As for housing, FCM
Myers stated that T.S. had threatened to eject Mother if he found her using
drugs. The record also reflects that the Children had suffered from a lack of
permanency, but had improved while residing with their current, pre-adoptive
caregivers since February 2013. In support, FCM Myers stated that the
Children were active in school, enjoyed their after-school activities, loved their
neighborhood, and appeared to be more relaxed in their current placement. In
addition, the CASA recommended the termination of Mother’s parental rights
due to Mother’s sobriety issues, drug issues, as well as Mother’s potential
pending incarceration for probation violations.
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 19 of 20 [32] Based on the totality of the evidence, coupled with the testimony from FCM
Myers and the CASA recommending termination of Mother’s parental rights,
we conclude that there is ample evidence to support the trial court’s conclusion
that termination of Mother’s parental rights is in the Children’s best interests.
CONCLUSION
[33] Based on the foregoing, we conclude that (1) there was no error in the adoption
of DCS’ findings, and (2) there was clear and convincing evidence to support
the termination of Mother’s parental rights.
[34] Affirmed.
[35] Brown, J. and Altice, J. concur
Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-156 | December 10, 2015 Page 20 of 20