MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 29 2020, 9:07 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John R. Worman Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana Sarah J. Shores Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 29, 2020 of Parental Rights of: Court of Appeals Case No. 19A-JT-1875 B.B. and A.D., (Minor Children) Appeal from the Vanderburgh and Superior Court R.B., (Mother) The Honorable Brett J. Niemeier, Appellant-Respondent, Judge The Honorable Beverly K. Corn, v. Referee Trial Court Cause Nos. The Indiana Department of 82D04-1902-JT-276 Child Services, 82D04-1902-JT-277 Appellee-Plaintiff,
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 1 of 26 Case Summary and Issue [1] R.B. (“Mother”) appeals the juvenile court’s termination of her parental rights
to two of her children. The sole issue Mother presents on appeal is whether the
juvenile court’s termination of her parental rights was clearly erroneous.
Concluding it was not, we affirm.
Facts and Procedural History [2] Mother is the biological mother of five children, two of whom are the subject of
this appeal: B.B., born January 17, 2015, and A.D., born December 19, 2016
(collectively “Children”). Mother has a history with the Indiana Department of
Child Services (“DCS”) and does not have custody of her other three children.1
[3] On or about August 30, 2017, DCS received a report that Mother had been
admitted to St. Vincent Hospital for an overdose/attempted suicide after
ingesting twenty-five Klonopin and Mother had tested positive for
methamphetamine, amphetamine, benzodiazepine, and marijuana. Mother
was diagnosed with bipolar disorder, depression, post-traumatic stress disorder,
and borderline personality disorder. In addition, when a DCS family case
manager (“FCM”) visited her home to complete an assessment, Vectren arrived
1 Children in need of services (“CHINS”) petitions were filed with respect to Mother’s other children in 2008 and 2014. In addition, we note that A.D.’s father voluntarily terminated his parental rights and DCS filed a petition to terminate B.B.’s father’s rights; however, there is no evidence in the record as to the result. Therefore, we have limited our recitation of the facts to those pertaining primarily to Mother, except as necessary.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 2 of 26 to shut off the electricity and gas in the house, and Mother refused to cooperate
with the FCM. At the time, B.B.’s whereabouts were unknown, and Mother
only stated that B.B. had been staying with an out-of-state relative since July.
A.D. was removed on August 31 and placed with her biological father.2
[4] On September 5, 2017, DCS filed separate petitions alleging Children were
children in need of services (“CHINS”) based on Mother’s overdose/suicide
attempt, substance abuse, mental health condition, and unsuitable home
conditions. Exhibits, Volume I at 101-03, 231-33. An initial/detention hearing
was held the same day during which Mother admitted the Children were
CHINS. The juvenile court adjudicated the Children as such. B.B. was located
and placed in foster care on September 7; A.D. remained with her father.
[5] On October 3, 2017, the juvenile court held a dispositional hearing and
subsequently entered a dispositional order requiring Mother (among other
things) to: maintain weekly contact with the FCM; complete a substance abuse
assessment and follow all treatment recommendations; submit to random drug
screens; refrain from drugs and alcohol; attend supervised visitation; and
cooperate with parent aid and mental health services and follow all treatment
recommendations. Initially, Mother was compliant; she attended Counseling
2 With respect to B.B., we note that prior to DCS’ involvement in the instant matter, B.B. tested positive for methamphetamine, THC, and Demerol shortly after birth and as such, was adjudicated a CHINS in 2015. As part of the case, Mother was ordered to submit to random drug screens, remain drug and alcohol free, and complete a substance abuse evaluation and follow all recommendations. See Exhibits, Volume I at 27. The matter was dismissed in April 2016. See id. at 37-38.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 3 of 26 for Change, submitted to drug screens, and participated in supervised visitation.
Because the Children were in separate homes, Mother had to have separate
visitations with each child. After DCS transitioned Mother to unsupervised
visitation at her home around November 2017, Mother would no show3 and
DCS placed her on a two-hour call ahead. Mother failed to comply and refused
to have visits with Children separately, which promoted DCS to assign a parent
aide to help Mother with transportation. However, when the aide visited the
home, Mother refused to have a visit. Eventually, Mother missed three visits
without calling ahead and DCS placed visitation on hold. See Transcript,
Volume II at 110-11. On November 28, Mother tested positive for
methamphetamine and, around this time, ceased contact with DCS.
[6] On January 16, 2018, DCS filed a Request for Taking or Continued Custody of
A.D. due to her father’s failure to comply with services and refusal to cooperate
with DCS. See Exhibits, Vol. I at 87. The next day, the juvenile court entered
an emergency order granting DCS’ request and A.D. was placed in foster care.
In a progress report filed on February 12, 2018, DCS reported that Mother had
not participated in services and had not contacted the FCM for several months.
DCS further reported that, at the time, Mother was not completing drug screens
or participating in visitation, and she did not provide an explanation as to why
3 Based on the evidence in the record, it is unclear how many visits Mother failed to attend.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 4 of 26 she had not exercised visitation with Children. Following a detention hearing
on February 13, the juvenile court ordered that A.D. remain in foster care.
[7] On February 20, 2018, the juvenile court held a periodic case review hearing for
which Mother failed to appear. Therefore, the juvenile court issued a warrant
for Mother’s arrest. See id. at 160, 177. Following the hearing, the juvenile
court entered an order finding that Mother had not complied with Children’s
case plan or services offered by DCS, enhanced her ability to fulfill her parental
obligations, maintained contact with the FCM, or participated in visitation for
several months. The juvenile court changed B.B.’s permanency plan from
reunification to adoption. Exhibits, Vol. II at 29-30. Mother was later arrested
on June 8. Exhibits, Vol. I at 83, 180-82. Throughout this case, Mother had
multiple outstanding warrants for her arrest in Warrick and Vanderburgh
County for various criminal and child support matters.
[8] A.D. was placed with B.B.’s foster family on March 5, 2018. From December
2017 to June 2018, Mother ceased all contact with DCS and was unable to be
located. Following Mother’s arrest, FCM Julie McDaniel4 successfully
contacted Mother in June. At that time, Mother chose to go back to
Counseling for Change with a new referral for a substance abuse evaluation,
treatment, and drug screens. On July 30, 2018, DCS filed a permanency report
informing the court that Mother: tested positive for amphetamine,
4 Julie McDaniel was previously known as Julie Fortney. See Tr. Vol. II at 107.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 5 of 26 methamphetamine, and THC on July 18; failed to participate in visitation for
several months; and “only recently inquired about visitation with her
[C]hildren.” Id. at 187. Following a review hearing on August 7, the juvenile
court again found that Mother had not complied with the case plan, service
recommendations, or visitation, and Mother continues to test positive for illegal
substances. The juvenile court changed A.D.’s permanency plan from
reunification to adoption. See id. at 203-04.
[9] In September 2018, Mother completed a parenting assessment. Around the
same time, Mother also tested positive for THC and, from October 2018
through January 2019, Mother failed to submit to drug screens and attend
substance abuse treatment. In a January 2019 progress report, DCS detailed
Mother’s compliance with the dispositional decree since August 10, 2018. DCS
reported that Mother had only complied with a substance abuse evaluation and
parenting assessment; she had not complied with drug screens or substance
abuse treatment; when Mother submitted to drug screens through Counseling
for Change, she tested positive for methamphetamine and THC; and Mother
stopped attending visitation in October 2017.
[10] DCS filed petitions to terminate Mother’s parental rights on February 11, 2019.
See Appellant’s Appendix, Volume II at 57-59, 78-82. A staff advocate of court
appointed special advocates (“CASA”) was subsequently appointed for
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 6 of 26 Children.5 In March 2019, Mother’s fiancé was arrested for domestic violence
against her but the case was ultimately dismissed at Mother’s request. On April
16, 2019, CASA Deborah Gamache filed an update with the juvenile court in
which she reported that Mother completed a parenting assessment and
substance abuse evaluation; failed to follow through with treatment
recommendations; and failed to complete a majority of the court ordered
services. CASA Gamache also reported that Mother has a “history of choosing
men that are not conducive to living a clean healthy life style [sic] for herself or
[C]hildren[,]” has “no visible means of financial stability[,]” has had her
utilities turned off and back on several times during the case, and is displayed
“around large amounts of money and illegal substances” on her social media
account. Id. at 133. CASA Gamache further opined:
Mother does not believe that her poor choices, PTSD, and anxiety will hinder her care of the [C]hildren. . . . [Mother] has shown a pattern that she cannot maintain her own mental health or substance abuse issues, stay clear of men that are violent and have criminal histories themselves, or . . . follow through of her [sic] own services that were court ordered[] to prove she would be able to do what is needed to raise her [C]hildren. By her past and recent actions mentioned above and lack of follow through, she continues to show that there is an extremely high probability that she will not be able to remedy her circumstances to be able to provide a secure and safe environment in the future for [Children]. . . .
5 The staff advocate in this case was a paid employee of CASA. See Tr., Vol. II at 133-34. In this opinion, we refer to the staff advocate as a CASA.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 7 of 26 Id. at 134.
[11] A fact-finding hearing was held on June 17, 2019, during which Mother
testified she was currently engaged in treatment for her mental health issues.
On August 2, the juvenile court entered separate orders6 terminating Mother’s
parental rights to B.B. and A.D. and found, in relevant part:
[B].7. While the [DCS] assessment worker was outside Mother’s home, a Vectren utilities truck parked outside the home. The utility worker told the assessment worker that he was shutting off the gas and electric to the home.
***
[C].11. Mother has a history of being both the victim and, at times, perpetrator of domestic violence. She testified that this has occurred with every father of her five (5) children, the most recent event occurring in March 2019 with another male; however, that cause was ultimately dismissed at [M]other’s request, after [M]other attended a program for victims of domestic violence.
16. Mother was included in meetings, and attended Court hearings where the expectations to achieve reunification were clearly discussed with her by DCS, CASA, and the Court.
6 Indiana Appellate Rule 38(A) provides that “[w]hen two (2) or more actions have been consolidated for trial or hearing in the trial court . . . , they shall remain consolidated on appeal.” Here, DCS filed two separate termination petitions and the juvenile court entered separate termination orders. Because the juvenile court held a consolidated fact-finding hearing on both petitions, the two actions remain consolidated on appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 8 of 26 Mother was offered bus tokens for transportation and all her services were referred by and paid for by DCS. Mother did not ask for any additional or different services. Despite removing barriers for Mother, Mother still did not make the changes she needed to make to parent her [C]hildren.
19. Mother believes she owes over $10,000 in unpaid child support for her son, L.S. She owes over $14,000 in unpaid child support for her daughters, Ba.S. and Bn.S.
20. . . . Mother was offered substance abuse treatment and drug screens to establish sobriety. She was referred to Counseling for Change and had some early success and a brief period of sobriety in October of 2017. She was attending her drug screens regularly at this time. However, she stopped attending her appointments and relapsed on methamphetamine in November of 2017. She stopped attending treatment and her random drug screens and no showed from December of 2017 through June of 2018. When she again screened in July of 2018, she tested positive for methamphetamine and THC. She was again referred to drug treatment, but continued to no show for treatment and screens from October of 2018 through January of 2019. Mother sought treatment on her own at NOW Counseling in February of 2019 but stopped attending after a couple of weeks. She was again referred to treatment, but no showed to her intake appointment in March of 2019. Mother has never completed the court ordered substance abuse treatment.
22. Mother refuses to acknowledge that she has a substance abuse issue or struggles with addiction. She denies the overdose that prompted the DCS investigation ever occurred. She testified
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 9 of 26 that she just woke up in the hospital and to this day has no knowledge of why she was there. Despite being presented with positive screens for methamphetamine on multiple occasions administered by various services providers since September of 2017, she continues to deny she ever used meth. She believes that her screens have been tampered with by her ex-boyfriend.
23. Mother acknowledges that she needs ongoing treatment for mental health issues, but refuses to take prescription drugs for her conditions. Instead she smokes marijuana and uses CBD oil. ...
25. Mother’s communications with DCS were sporadic and non-cooperative. After relapsing in November of 2017, Mother was unheard from until late June of 2018. Attempts to contact her by the FCM and law enforcement at her home address were unsuccessful. She later was in contact for several months and then ceased communications again until February of 2019.
26. Mother admits that for much of the case she did not follow the orders of the Court and or complete services for reunification of her [C]hildren because she was attempting to avoid outstanding warrants for her arrest in Warrick and Vanderburgh County for various criminal and child support matters.
Appealed Order at 3, 5-8. Based on these findings, the juvenile court
concluded:
27. [I]t does not appear that Mother is likely to remedy the reasons that the [C]hildren have remained out of her care.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 10 of 26 28. Beyond failing to follow the orders of the Court, Mother has engaged in actions during the pending CHINS which cause concern for the Court. Mother has continued to use illegal and impairing substances, has been absent and unavailable for extended periods in an attempt to avoid arrest, and has shown a pattern of failing to be able to provide for her [C]hildren. There is a reasonable probability that continuation of Mother’s parental rights poses a threat to the well-being of the [C]hildren.
29. CASA personnel testified that she felt it was in the best interest of the [Children] for [M]other’s parental rights to be terminated, especially since so much time had passed since Mother had even visited with the [Children].
[D]. 7. Mother has had ample time to show a change in her behaviors to bring about reunification. Permanency is critical for the [Children] and [they] should not have to wait any longer for permanency in this case;
8. It is in the best interests of [Children] to be adopted due to the inability of the Mother to provide appropriate care and supervision for the [C]hildren;
9. DCS and the [CASA] believe that adoption is in the [C]hildren’s best interest. The Court finds that adoption is in the [C]hildren’s best interest.
10. Mother’s pattern of continuing substance abuse, untreated mental health needs, financial instability, and criminal behavior indicates that maintaining a parent-child relationship with Child[ren] is not in the best interests of Child[ren.]
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 11 of 26 Id. at 8-9.7 Mother now appeals. Additional facts will be supplied as necessary.
Discussion and Decision I. Standard of Review [12] A parent’s right to establish a home and raise their children is protected by the
Fourteenth Amendment to the United States Constitution. In re D.D., 804
N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied. Although parental rights
are of a constitutional dimension, they are not without limitation and the law
provides for the termination of these rights when parents are unable or
unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144,
149 (Ind. Ct. App. 2008). We acknowledge that the parent-child relationship is
“one of the most valued relationships in our culture,” but also recognize that
“parental interests are not absolute and must be subordinated to the child’s
interests in determining the proper disposition of a petition to terminate
parental rights.” Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143,
147 (Ind. 2005) (internal quotations omitted). The involuntary termination of
one’s parental rights is the most extreme sanction a court can impose because
termination severs all rights of a parent to his or her children. See In re T.F., 743
N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. As such, termination is
7 Although the juvenile court entered separate termination orders under separate cause numbers, the findings of fact and conclusions thereon are identical with respect to Mother. Accordingly, in this opinion, we quote only one order.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 12 of 26 intended as a last resort, available only when all other reasonable efforts have
failed. Id. The purpose of terminating parental rights is to protect children, not
to punish parents. In re D.D., 804 N.E.2d at 265.
[13] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge the credibility of witnesses. Lang v. Starke Cty. Office of Family
& Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied. Instead, we
consider only the evidence most favorable to the judgment and the reasonable
inferences that can be drawn therefrom. Id. In deference to the trial court’s
unique position to assess the evidence, we will set aside its judgment
terminating a parent-child relationship only if it is clearly erroneous. In re
L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied; cert. denied, 534
U.S. 1161 (2002). Thus, if the evidence and inferences support the decision, we
must affirm. Id.
[14] As required by Indiana Code section 31-35-2-8(c), the juvenile court entered
findings of fact and conclusions thereon. Therefore, we apply a two-tiered
standard of review: we first determine whether the evidence supports the
findings, then determine whether the findings support the judgment. Bester, 839
N.E.2d at 147. “Findings are clearly erroneous only when the record contains
no facts to support them either directly or by inference.” Quillen v. Quillen, 671
N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous only if the findings
do not support the court’s conclusions or the conclusions do not support the
judgment thereon. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 13 of 26 II. Statutory Framework for Termination [15] Before an involuntary termination of parental rights may occur in Indiana, DCS
must allege and prove, in relevant part:
(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). Notably, the provisions of Indiana Code section
31-35-2-4(b)(2)(B) are written in the disjunctive, and thus the juvenile court
need only find one of the three elements has been proven by clear and
convincing evidence. See, e.g., In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App.
2009); Ind. Code § 31-37-14-2 (“[A] finding in a proceeding to terminate
parental rights must be based upon clear and convincing evidence.”). If a
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 14 of 26 juvenile court determines the allegations of the petition are true, then the court
shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
III. Findings of Fact [16] Because the judgment underlying the termination of Mother’s parental rights
contains specific findings of fact and conclusions thereon, we must first
determine whether the evidence supports the findings. In re A.S., 17 N.E.3d
994, 1002 (Ind. Ct. App. 2014), trans. denied. If the record contains no evidence
to support the findings either directly or by inference, the findings are clearly
erroneous. In re S.S., 120 N.E.3d 605, 609 (Ind. Ct. App. 2019). Mother
challenges the following findings of fact:
[B].7. While the [DCS] assessment worker was outside Mother’s home, a Vectren utilities truck parked outside the home. The utility worker told the assessment worker that he was shutting off the gas and electric to the home.
[C].11. Mother has a history of being both the victim and, at times, perpetrator of domestic violence. She testified that this has occurred with every father of her five (5) children, the most recent event occurring in March 2019 with another male; however, that cause was ultimately dismissed at [M]other’s request, after [M]other attended a program for victims of domestic violence.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 15 of 26 [C].16. Mother was included in meetings, and attended Court hearings where the expectations to achieve reunification were clearly discussed with her by DCS, CASA, and the Court. Mother was offered bus tokens for transportation and all her services were referred by and paid for by DCS. Mother did not ask for any additional or different services. Despite removing barriers for Mother, Mother still did not make the changes she needed to make to parent her [C]hildren.
Appealed Order at 3, 5-6.
[17] First, with respect to finding number B.7., Mother argues this finding is clearly
erroneous because “[n]o testimony was taken as to whether [her] utilities would
or would not be shut off at the time of the removal in the underlying CHINS
[case].” Appellant’s Brief at 17. However, there is evidence in the record to
support this finding. DCS Exhibit 10, which contained DCS’ Report of
Preliminary Inquiry and Investigation filed with the juvenile court on
September 5, 2017, was admitted at the fact-finding hearing, and states: “As
FCM pulled up to [Mother]’s house a Vectren van was parked in front. When
asked, the worker stated the power and gas were to be shut off.” Exhibits, Vol.
I at 89; see also Tr., Vol. II at 107. Furthermore, at the fact-finding hearing,
FCM McDaniel testified that she was familiar with why the Children were
removed and stated that during DCS’ assessment, “Vectren had c[o]me to
[Mother’s] house and turned off her electricity. [Mother] had previous issues
. . . with other utilities not working[.]” Tr., Vol. II at 110. Given the evidence,
this finding is not clearly erroneous.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 16 of 26 [18] Regarding finding number C.11., Mother argues that a portion of this finding is
clearly erroneous because, at the fact-finding hearing, she denied domestic
violence in her current relationship. Specifically, Mother challenges the part
stating, “She testified that [domestic violence] has occurred with every father of
her five (5) children, the most recent event occurring in March 2019 with
another male[.]” Appealed Order at 5-6. We conclude this finding is not
clearly erroneous because, when asked at the fact-finding hearing whether she
had ever been a victim of domestic violence, Mother replied, “Yes, with all of
my exes.” Tr., Vol. II at 79. Although Mother denied being a victim of
domestic violence in her current relationship, id. at 63., Mother’s current fiancé
is not the father to any of her five children. Accordingly, we find no error.
[19] Finally, Mother claims finding number C.16. is clearly erroneous because DCS
never offered her any bus tokens for transportation. We agree there is no
evidence in the record to support this portion of the finding and, as such, it is
clearly erroneous. However, we conclude such error is harmless when
considered in conjunction with the unchallenged findings and ample evidence
presented to support termination of Mother’s parental rights, as discussed
below. See In re A.S., 17 N.E.3d at 1003-06 (holding that despite several clearly
erroneous findings of fact, DCS presented sufficient evidence to support
termination of parental rights even absent the erroneous findings); see also
McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (unchallenged
findings are accepted as true).
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 17 of 26 IV. Conclusions of Law A. Remedy of Conditions [20] The juvenile court concluded there is a reasonable probability that the
conditions that led to Children’s removal and continued placement outside
Mother’s care will not be remedied. Mother challenges this conclusion and
contends that DCS and the juvenile court “failed to consider [her]
accomplishments which included maintaining stable housing and successes in
her visitation.” Appellant’s Br. at 20. We disagree.
[21] We engage in a two-step analysis to determine whether such conditions will be
remedied: “First, we must ascertain what conditions led to [Children’s]
placement and retention in foster care. Second, we determine whether there is
a reasonable probability that those conditions will not be remedied.” In re
K.T.K., 989 N.E.2d 1225, 1231 (Ind. 2013) (quotation omitted). With respect
to the second step, a juvenile court assesses whether a reasonable probability
exists that the conditions justifying a child’s removal or continued placement
outside his parent’s care will not be remedied by judging the parent’s fitness to
care for the child at the time of the termination hearing, taking into
consideration evidence of changed conditions. In re E.M., 4 N.E.3d 636, 643
(Ind. 2014). Habitual conduct may include criminal history, drug and alcohol
abuse, history of neglect, failure to provide support, and lack of adequate
housing and employment, but the services offered to the parent and the parent’s
response to those services can also be evidence of whether conditions will be
remedied. A.D.S v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 18 of 26 App. 2013), trans. denied. DCS “is not required to provide evidence ruling out
all possibilities of change; rather, it need establish only that there is a reasonable
probability the parent’s behavior will not change.” In re I.A., 903 N.E.2d at
154.
[22] The uncontroverted evidence establishes that Children were initially removed
from Mother’s care due to her substance abuse and mental health issues,
specifically her overdose/attempted suicide, as well as unsuitable home
conditions. Based on Mother’s non-compliance with services, pattern of
evading warrants, continued mental health and substance abuse issues, and
financial instability, Children remained outside of Mother’s care. We conclude
that DCS presented sufficient evidence to support the juvenile court’s
conclusion that there is a reasonable probability that these conditions will not
be remedied.
[23] First, throughout this case, Mother’s compliance with services was brief and
intermittent, demonstrating her lack of commitment toward reunification and
unwillingness to address her overall instability. In October 2017, the juvenile
court ordered that Mother maintain weekly contact with DCS; complete a
substance abuse assessment and follow all treatment recommendations; submit
to random drug screens; refrain from drugs and alcohol; attend supervised
visitation; and cooperate with parent aid and mental health services and follow
all treatment recommendations. The evidence reveals that Mother was initially
compliant. Mother attended Counseling for Change, submitted to drug screens,
and participated in supervised visitation. Based on Mother’s compliance and
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 19 of 26 sobriety, DCS recommended unsupervised visitation in November 2017.
However, Mother would fail to show for the visits and was placed on a two-
hour call ahead, which she also failed to comply with. Ultimately, Mother
refused to have visits with Children separately8 and, when a parent aide visited
her home to assist with transportation, Mother refused to have a visit. Mother
subsequently missed three visits without calling ahead and DCS placed
visitation on hold. Mother has not participated in visitation since that time.
[24] In November 2017, Mother ceased all contact with DCS. FCM McDaniel
testified that, between January and June of 2018, she attempted to reach
Mother eight or nine times but was unsuccessful. After Mother was arrested in
June 2018, McDaniel was able to contact Mother and put in a new referral for a
substance abuse evaluation and parenting assessment. Mother returned to
Counseling for Change. Although Mother completed a parenting assessment
and, at some point, a substance abuse evaluation, she failed to submit to drug
screens or attend substance abuse treatment from October 2018 to January
2019. At the fact-finding hearing, Mother conceded she was not currently
submitting to drug screens anywhere but testified that, in the last month and a
half, she has been engaged in weekly treatment at Virtual Consultant to address
her extreme social anxiety and PTSD. Specifically, Mother sought this
treatment through her own initiative and was participating in eye movement
8 As previously stated, Children were placed in separate homes at this time. Therefore, due to scheduling conflicts, Mother had separate visitations with each child.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 20 of 26 deferral reprocessing (“EMDR”) treatment, which she described as “basically
reprogramming our belief system and any kind of negative patterns you have.”
Tr., Vol. II at 77.
[25] Although Mother has recently engaged in EMDR, she never completed
substance abuse treatment and consistently failed to demonstrate sobriety
during this case. In August 2017, when Mother was admitted to the hospital
for an overdose/suicide attempt, she tested positive for methamphetamine,
amphetamines, benzodiazepine, and marijuana. After Mother’s brief period of
compliance and sobriety in November 2017, she tested positive for
methamphetamine. Mother then disappeared for six months in an effort to
evade outstanding warrants for her arrest and subsequently tested positive for
amphetamine, methamphetamine, and THC in July 2018. Mother’s last drug
screen was in September or October of 2018 and she tested positive for THC.
[26] Second, not only did Mother fail to complete substance abuse treatment, she
continues to deny that she has a substance abuse issue and she refuses to
acknowledge the overdose that prompted DCS’ involvement. See Tr., Vol. II at
67-68, 102. At the fact-finding hearing, Mother testified she did not believe she
needed substance abuse treatment. See id. at 62. She stated, “Substance abuse
is not an issue. It’s nothing for me not to use. I don’t have issues with that.”
Id. at 102. Instead, Mother believes her main issue is her mental health and
emotional trauma. Mother’s denial and failure to complete treatment
constitutes strong evidence that she is unlikely to remedy her substance abuse
issues without treatment she is unwilling to undergo.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 21 of 26 [27] Third, Mother’s history of neglect, failure to provide support for her children,
and criminal history support the juvenile court’s conclusion that it is unlikely
Mother will remedy the conditions that led to Children’s removal and
continued placement outside of her care. Mother has five children, all of whom
have been removed from her care, as well as a history with DCS that began in
2008, when Mother’s child, L.S., was removed from her care because she was
arrested and charged with battery. See id. at 37; Exhibits, Vol. I at 3-6. In 2014,
two of Mother’s children, Ba.S. and Bn.S., were the subject of a CHINS
petition and removed from her care. Mother recalled the underlying
circumstances of the petition – that she had gone to the hospital and tested
positive for methamphetamine and THC. As a result, she was ordered to
complete visitation and substance abuse treatment; however, Mother conceded
that she did not complete treatment. See Tr., Vol. II at 45; see also Exhibits, Vol.
I at 40-52. Notably, in 2015, shortly after birth, B.B. tested positive for
methamphetamine, THC, and Demerol. B.B. was adjudicated a CHINS,
Mother participated in services, and matter was dismissed in the spring of 2016.
See Exhibits, Vol. I at 24-38. Mother also estimated that she owed $10,000 in
child support for L.S. and $14,000 in child support for Ba.S. and Bn.S.
[28] Moreover, Mother’s criminal history is comprised of multiple battery
convictions, residential entry, trespass, possession of paraphernalia, conversion,
battery resulting in bodily injury, theft, and two convictions for public
intoxication and disorderly conduct. Although Mother’s most recent
conviction was in 2015, she admitted that she did not participate in court
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 22 of 26 ordered services in an effort to avoid outstanding warrants for her arrest in
Warrick and Vanderburg County. See Tr. Vol. II at 56-58. Mother’s decision to
avoid the warrants ultimately hindered any progress in this case and CASA
Gamache testified that there were various issues preventing reunification,
including Mother’s severe anxiety and mental health. However, Gamache
stated the big factor was Mother’s evasion of several warrants: “The one big
stickler, when she was not doing services and not contacting anybody when she
had warrants was a huge, huge, stumbling block and we lost an awful lot of
time during that process because she did not want to go to jail.” Id. at 136.
[29] Lastly, Mother failed to make any progress with respect to her ability to provide
for Children. At the fact-finding hearing, Mother detailed her work history.
She was currently unemployed and her most recent job was in 2017 at Sonic,
where she worked one eight-hour shift. Prior to that, in 2015, Mother worked
at McDonald’s for three months and Farbest for three days; and in 2012,
Mother had a job at Prime Foods for approximately a month and a half.
Mother further stated that her monthly income is comprised of one $190 utility
check from Section 8 and roughly $250 from donating plasma. Mother planned
to obtain social security disability, which she had already been denied several
times, and failed to engage in any services toward obtaining employment.
[30] Overall, Gamache opined that Mother did not take advantage of the services
offered to her and, when asked whether she believed it was likely that Mother
would remedy the conditions that led to Children’s removal, Gamache
responded, “Not at this time. [Mother] seems to keep putting herself into
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 23 of 26 situations where she’s repeating the cycles over and over again.” Id. at 137.
FCM McDaniel agreed and stated:
[Mother] has been offered services for approximately 2 years now off and on. She was also offered services prior through other cases. This has been an ongoing issue with her drug issues. She also does not have any income. These [C]hildren are kids that need stability in their lives and consistency. Somebody also that can maintain their own therapeutic needs plus the [Children]’s therapeutic needs. And at this time[,] I don’t believe that [Mother] can do that.
Id. at 117.
[31] A parent’s pattern of unwillingness or lack of commitment to address parenting
issues and to cooperate with services demonstrates the requisite reasonable
probability that the conditions will not change. Lang, 861 N.E.2d at 372. Such
is the case here and, ultimately, Mother’s argument is simply a request to
reweigh the evidence in her favor, which we cannot do. See id. at 371.
Although we commend Mother’s initiative by recently participating in EDMR,
she has demonstrated a pattern of non-compliance and unwillingness to remedy
her instability. Therefore, we conclude the juvenile court’s findings supported
its conclusion that there is a reasonable probability that the conditions that led
to Children’s removal and continued placement outside Mother’s care will not
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 24 of 26 be remedied.9 See, e.g., In re E.M., 4 N.E.3d at 644 (findings regarding a parent’s
continued non-compliance with services supported juvenile court’s conclusion
the conditions under which children were removed from the parent’s care
would not be remedied).
B. Best Interests [32] Mother also challenges the juvenile court’s conclusion that termination of her
parental rights is in Children’s best interests. “Permanency is a central
consideration in determining the best interests of a child.” In re G.Y., 904
N.E.2d 1257, 1265 (Ind. 2009). In determining what is in the best interests of
the child, the juvenile court must look beyond the factors identified by DCS and
look to the totality of the evidence. A.D.S., 987 N.E.2d at 1158. In doing so,
the juvenile court must subordinate the interest of the parents to those of the
child. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203
(Ind. Ct. App. 2003). And the juvenile court need not wait until the child is
irreversibly harmed before terminating the parent-child relationship. Id.
Recommendations of the FCM and CASA, in addition to evidence that the
conditions resulting in removal will not be remedied, are sufficient to show by
9 Having determined that DCS met its burden of showing that the conditions that resulted in Children’s removal and continued placement outside of Mother’s care will not be remedied, we need not address whether DCS met its burden of proving that the continuation of the parent child relationship poses a threat to Children’s well-being. K.T.K., 989 N.E.2d at 1234.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 25 of 26 clear and convincing evidence that termination is in the child’s best interest. In
re A.S., 17 N.E.3d at 1005.
[33] Here, the FCM and CASA both testified that termination of Mother’s parental
rights is in Children’s best interests. See Tr., Vol. II at 117, 138. At the fact-
finding hearing, FCM McDaniel explained, “I do not believe that [Mother] can
provide the consistency or the sobriety that is needed at this time.” Id. at 117.
In addition, McDaniel opined there is a threat of harm to the Children if
Mother’s rights are not terminated because Mother “has not demonstrated that
she can live a sober lifestyle.” Id. CASA Gamache testified that “with the
amount of time that has gone by” in this case, termination is in Children’s best
interests. Id. at 138. Having already concluded there is ample evidence in the
record that the conditions resulting in removal will not be remedied, we
conclude this testimony is sufficient to support the juvenile court’s conclusion
that termination of Mother’s parental rights is in Children’s best interests. See
In re A.S., 17 N.E.3d at 1005.
Conclusion [34] We conclude that DCS presented sufficient evidence to support the juvenile
court’s order terminating Mother’s parental rights to Children. Thus, the
juvenile court’s order was not clearly erroneous, and we affirm.
[35] Affirmed.
Bradford, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1875 | January 29, 2020 Page 26 of 26