MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 29 2019, 7:11 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 Jeremy L. Seal Curtis T. Hill, Jr. Seymour, Indiana Attorney General of Indiana Natalie F. Weiss Robert J. Henke Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 29, 2019 of the Parent-Child Relationship Court of Appeals Case No. of J.R., Mother, R.R., Father,1 18A-JT-2119 and N.R., Child, Appeal from the J.R., Jackson Superior Court The Honorable Appellant-Respondent, Bruce A. MacTavish, Judge v. Trial Court Cause No. 36D02-1801-JT-3 Indiana Department of Child Services,
1 We note that, although Father’s parental rights were also terminated, he does not join in this appeal. However, under Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 1 of 21 Appellee-Petitioner.
Kirsch, Judge.
[1] J.R. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to her minor child, N.R. (“Child”). Mother raises the following restated
issue on appeal: whether the juvenile court’s judgment terminating her parental
rights was supported by clear and convincing evidence.
[2] We affirm.
Facts and Procedural History [3] In November 2016, the Indiana Department of Child Services (“DCS”)
received a report alleging (1) Child, born March 1, 2015, was the victim of
neglect, (2) Mother and R.R. (“Father”)2 were living together despite there
being a no contact order between them, and (3) methamphetamine use and
domestic violence occurring in the home. Pet’r’s Ex. 2 at 20-21. In response to
2 Father consented to the termination of his parental rights and does not join in this appeal. We, therefore, only set forth those facts necessary to Mother’s appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 2 of 21 this report, family case manager Lesley Hewitt-Rooks (“FCM Hewitt-Rooks”)
investigated the report and conducted an assessment. Id. at 21. After several
attempts, FCM Hewitt-Rooks was able to make contact with Father, who tested
positive for morphine and methamphetamine. FCM Hewitt-Rooks was not
able to make contact with Mother, even though she observed Mother inside the
home on one occasion. Id. at 22; Pet’r’s Ex. 3 at 29. On December 2, 2016,
FCM Hewitt-Rooks went to the home and observed several individuals sitting
on the sofa smoking something out of foil and that Father seemed to be under
the influence of drugs or alcohol when he answered the door. Pet’r’s Ex. 3 at 29.
Although Father denied using methamphetamine that day, he stated he had
used methamphetamine the day before and that Child was in his care when he
did so. Id. At that time, Mother’s whereabouts were unknown, and FCM
Hewitt-Rooks was not able to make contact with her. Id.; Pet’r’s Ex. 2 at 22.
DCS removed Child from the care of Mother and Father on that date due to the
young age of Child, Father’s admitted drug use, the parents’ domestic violence,
and Mother’s absence. Pet’r’s Ex. 2 at 22.
[4] On December 6, 2016, DCS filed a child in need of services (“CHINS”)
petition, due to, among other things, Mother’s: (1) drug use; (2) domestic
violence involvement; and (3) absence from the Child’s life. Appellant’s App.
Vol. 2 at 23-27. At the detention hearing held on December 6, 2016, Mother
failed to appear, and the juvenile court ordered continued removal of Child
from Mother’s care and authorized Child’s placement in relative care. Id. at 31-
32. Mother did not appear for the initial hearing on December 12, 2016. Id. at
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 3 of 21 34. Mother also did not appear for informal mediation on January 4, 2017.
Pet’r’s Ex. 7 at 46.
[5] On January 25, 2017, Mother again failed to appear for the CHINS hearing.
Appellant’s App. Vol. 2 at 37. At the hearing, Father admitted to the allegations
in the CHINS petition, and the juvenile court found Child to be a CHINS and
entered a dispositional decree. Id. at 37-40. Under the dispositional decree, the
juvenile court ordered Child’s continued removal from both Mother and
Father’s care, and Father was directed to participate in a variety of services. Id.
[6] Mother appeared in court for the first time on February 8, 2017 for a change of
placement hearing, but she failed to appear at the review hearings held on April
26, 2017 and July 26, 2017. Pet’r’s Ex. 11 at 58; Pet’r’s Ex. 12 at 62; Pet’r’s Ex. 14
at 68. Mother did appear in court on October 4, 2017 for a permanency
hearing. The juvenile court found that Mother had not complied with the
reunification case plan because she had: (1) tested positive for illegal substances
during the reporting period; (2) missed scheduled visitation with Child; (3)
failed to participate in services; (4) remained homeless during the majority of
the reporting period; and (5) failed to maintain communication with DCS.
Pet’r’s Ex. 15 at 70-71. The juvenile court ordered concurrent permanency plans
of reunification and adoption. Id. Mother failed to appear for hearings on
October 25, 2017 and November 29, 2017. Pet’r’s Ex. 16 at 74; Pet’r’s Ex. 17 at
78.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 4 of 21 [7] On November 29, 2017, a dispositional hearing was held, and the juvenile court
issued a dispositional decree that ordered Mother to, among other things: (1)
contact FCM every week; (2) notify FCM of any changes in address, household
composition, employment, or telephone number; (3) notify FCM of any arrest
or criminal charges; (4) allow FCM and other service providers to make
announced and unannounced visits to Mother’s home; (5) enroll in any
recommended programs or assessments; (6) keep all appointments with service
providers, DCS, and court appointed special advocate (“CASA”); (7) maintain
suitable, safe, and stable housing; (8) secure and maintain a legal and stable
source of income; (9) do not use illegal controlled substances; (10) complete a
substance abuse assessment and follow all recommendations; (11) submit to
random drug screens; (12) attend all scheduled visitations with Child; and (13)
participate in home-based case management. Pet’r’s Ex. 17 at 79-80. The
juvenile court also changed the permanency plan for Child to termination of
parental rights and adoption. Id. at 81.
[8] Mother failed to appear at the periodic review hearings held on January 3, 2018
and April 18, 2018. Pet’r’s Ex. 18 at 83; Pet’r’s Ex. 19 at 87. At both hearings,
the juvenile court found that the reasons for Child’s removal had not been
alleviated and that Mother had not complied with the dispositional order.
Pet’r’s Ex. 18 at 83-84; Pet’r’s Ex. 19 at 87-88.
[9] On January 2, 2018, DCS filed its petition to terminate Mother’s parental rights
to Child. An evidentiary hearing on the petition was held on May 9, 2018. At
the hearing, evidence was presented that Mother struggled with substance abuse
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 5 of 21 and continued to use drugs throughout the proceedings. Tr. Vol. I at 18-19, 60-
61. Mother admitted to using illegal substances and, over the course of the
proceedings, refused to cooperate with DCS and to participate in substance
abuse treatment and in all drug screens. Id. at 59-60. When Mother did
complete drug screens, she tested positive for methamphetamine,
buprenorphine, and amphetamine. Id. at 18-19, 59; Pet’r’s Ex. 42 at 188-202.
Her positive drug tests spanned the length of the proceedings, starting in
December 2016 and continuing to November 2017. Tr. Vol. I at 51, 59.
[10] Mother was arrested on April 25, 2018 and charged with visiting a common
nuisance that is maintained for the unlawful use of controlled substances or
items of drug paraphernalia. Id. at 21. Mother failed to complete follow up
treatments and recommendations. Id. at 57, 60-61. FCM Rebecca Claycamp
(“FCM Claycamp”) made a referral for Mother to attend Centerstone, an
inpatient treatment facility, on December 18, 2017, but Mother failed to
participate. Id. at 57. A follow-up referral was made on January 10, 2018, and
Mother again failed to appear. Id. Mother also failed to complete a
recommended home-based case management program and recommended
services for domestic violence. Id. at 60-61. FCM Claycamp testified that
Mother admitted to her that she had a problem with drugs and needed help,
and FCM Claycamp believed that Mother’s substance abuse impaired her
ability to care for Child. Id. at 60-61, 66.
[11] Lauren Perryman, clinical manager for Life Spring, completed an assessment of
Mother in November 2017 and recommended that Mother attend individual
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 6 of 21 therapy and participate in medication management. Id. at 25-26. Mother only
attended one individual therapy session on December 29, 2017. Id. at 26.
Mother did participate in medication management but was discharged March
30, 2018 for missing four appointments. Id. at 27, 30. Life Spring referred
Mother to a detox program, which she completed in December 2017, but when
Life Spring referred her to a thirty-day inpatient treatment facility in January or
February of 2018, Mother again failed to attend. Id. at 27-29.
[12] Mother also failed to consistently visit Child. Id. at 33-37, 64. In September
2017, Mother attended four out of six visitations; in October 2017, three out of
eight; in November 2017, one out of seven scheduled visitations; and in
December 2017, she failed to attend any visitations. Id. at 36. In January 2018,
Mother attended one visitation, and in February 2018, Mother did not visit
Child despite three opportunities. Id. at 36, 38. Mother’s referral for schedule
visitations was closed in February 2018 due to non-compliance. Pet’r’s Ex. 40.
Over the course of the proceedings, Mother visited Child seven out of fifty-five
scheduled visitations. Id.
[13] Mother also did not maintain consistent contact with DCS throughout the
proceedings, and FCM Claycamp described communication with Mother as
“sporadic.” Pet’r’s Ex. 18 at 83; Tr. Vol. I at 54. DCS made efforts to maintain
contact, but Mother failed to provide the necessary contact information. Tr.
Vol. I at 65. Mother failed to maintain stable housing during the proceedings
and stayed at “three or four different places” and frequently ended up on “the
streets.” Id. at 13, 17, 76-77. At the time of the termination hearing, Mother Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 7 of 21 was living with a friend, but her name was not on the lease, and she did not
know that address. Id. at 22-23. Additionally, Mother also failed to maintain
stable employment. Id. Although she stated that she is searching for a job,
FCM Claycamp testified that Mother has not worked during the life of the case.
Id. at 23, 65.
[14] Throughout the proceedings, the juvenile court repeatedly found in its periodic
case review orders that the cause of Child’s removal and placement outside the
home had not been alleviated. Pet’r’s Ex. 12 at 63, Pet’r’s Ex. at 84, Pet’r’s Ex. at
88. FCM Claycamp testified that termination was in Child’s best interest and
that the conditions that caused Child’s removal would likely not be remedied
due to Mother’s failure to participate in services, her substance abuse, and the
lack of a stable job and housing. Tr. Vol. I at 65-67. The CASA also testified
that termination of the parent-child relationship was in Child’s best interest. Id.
at 82-83. Child’s therapist, Kathy O’Donnell (“O’Donnell”) testified that Child
should not be returned to Mother’s care. Id. at 47. FCM Claycamp, CASA,
and O’Donnell all agreed that it was in the Child’s best interest to stay in the
care of the foster family. Id. at 47, 70-71, 83. FCM Claycamp testified that
Child was “very well loved” by her foster family. Id. at 67. The CASA testified
that Child was “doing quite well” in the foster home. Id. at 82. O’Donnell
testified that Child was “very happy” in the foster home and that Child suffers
from post-traumatic stress disorder but had progressed “wonderfully” in her
placement. Id. at 46-47. DCS’s plan for Child was adoption by her foster
family. Id. at 71.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 8 of 21 [15] At the conclusion of the hearing, the juvenile court took the matter under
advisement. On August 30, 2018, the juvenile court issued its order terminating
Mother’s parental rights to Child. Mother now appeals.
Discussion and Decision [16] Mother argues that the juvenile court erred in terminating her parental rights
because DCS did not prove several of the requirements by clear and convincing
evidence. As our Supreme Court has observed, “Decisions to terminate
parental rights are among the most difficult our trial courts are called upon to
make. They are also among the most fact-sensitive—so we review them with
great deference to the trial courts[.]” E.M. v. Ind. Dep’t of Child Servs., 4 N.E.3d
636, 640 (Ind. 2014). While the Fourteenth Amendment to the United States
Constitution protects the traditional right of a parent to establish a home and
raise her child, and parental rights are of a constitutional dimension, the law
allows for the termination of those rights when a parent is unable or unwilling
to meet her responsibility as a parent. Bester v. Lake Cty. Office of Family &
Children, 839 N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766, 773 (Ind.
Ct. App. 2001), trans. denied. Parental rights are not absolute and must be
subordinated to the child’s interests in determining the appropriate disposition
of a petition to terminate the parent-child relationship. In re J.C., 994 N.E.2d
278, 283 (Ind. Ct. App. 2013). The purpose of terminating parental rights is not
to punish the parent but to protect the child. In re D.P., 994 N.E.2d 1228, 1231
(Ind. Ct. App. 2013). Termination of parental rights is proper where the child’s
emotional and physical development is threatened. Id. The juvenile court need
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 9 of 21 not wait until the child is irreversibly harmed such that his physical, mental,
and social development is permanently impaired before terminating the parent-
child relationship. Id.
[17] When reviewing a termination of parental rights case, we will not reweigh the
evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,
149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and
reasonable inferences that are most favorable to the judgment. Id. Moreover,
in deference to the trial court’s unique position to assess the evidence, we will
set aside the court’s judgment terminating a parent-child relationship only if it is
clearly erroneous. Id. at 148-49. A judgment is clearly erroneous only if the
legal conclusions made by the juvenile court are not supported by its findings of
fact, or the conclusions do not support the judgment. In re S.P.H., 806 N.E.2d
874, 879 (Ind. Ct. App. 2004).
[18] Where, as here, the juvenile court entered specific findings and conclusions, we
apply a two-tiered standard of review. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct.
App. 2008), trans. denied. First, we determine whether the evidence supports the
findings, and second, we determine whether the findings support the judgment.
Id. A finding is clearly erroneous only when the record contains no facts or
inferences drawn therefrom that support it. Id. If the evidence and inferences
support the trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t of Child
Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 10 of 21 [19] Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, among other things:
(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.
(ii) A court has entered a finding under I.C. 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the house as a result of the child being alleged to be a child in need of services or a delinquent child.
(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.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 11 of 21 (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). The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In
re H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a
petition described in section 4 of this chapter are true, the court shall terminate
the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).
Removal under a Dispositional Decree
[20] Mother first argues that there was not sufficient evidence presented to prove
that Child had been removed from Mother’s care for at least six months under a
dispositional decree. Mother seems to argue that Indiana Code section 31-35-2-
4(b)(2)(A) requires DCS to wait six months from when the juvenile court orders
the parent to participate in services before filing its termination petition.
Mother asserts that because the juvenile court ordered only Father to participate
in services on January 25, 2017, as he was the only parent to appear for the
hearing, the six-month time frame for her did not start until December 20, 2017,
when the juvenile court finally directed Mother to participate in services.
[21] Initially, we note that Mother raises this argument with no citation to any legal
authority and has, therefore waived this issue. See Ind. Appellate Rule
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 12 of 21 46(A)(8)(a) (“The argument must contain the contentions of the appellant on
the issues presented supported by cogent reasoning. Each contention must be
supported by citations to the authorities, statutes, and the Appendix or parts of
the Record on Appeal relied on.”). A party waives an issue where the party
does not develop a cogent argument or provide adequate citation to authority
and portions of the record. Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct.
App. 2005), trans. denied.
[22] Waiver notwithstanding, we conclude that the evidence showed that Child had
been removed from Mother for at least six months under a dispositional decree.
“This [c]ourt has previously explained that ‘[f]or purposes of the element of the
involuntary termination statute requiring a child to have been removed from the
parent for at least six months under a dispositional decree before termination
may occur, . . . such a dispositional decree is one that authorizes an out-of-
home placement.’” In re D.D., 962 N.E.2d 70, 75 (Ind. Ct. App. 2011) (quoting
A.P. v. Porter Cty. Office of Family & Children, 734 N.E.2d 1107, 1116 (Ind. Ct.
App. 2000), trans. denied) (internal quotations omitted). Here, under the
dispositional decree ordered on January 25, 2017, the juvenile court ordered
Child’s continued removal from both Mother and Father’s care. Appellant’s
App. Vol. 2 at 37-40. Therefore, at the time the termination petition was filed on
January 3, 2018, Child had been removed from Mother’s care for at least six
months under a dispositional decree. Based upon this, we conclude that the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 13 of 21 evidence supported the juvenile court’s determination that Child had been
removed from Mother for at least six months under a dispositional decree. 3
Conditions Remedied
[23] Mother contends that the juvenile court erred in concluding that DCS presented
sufficient evidence that there was a reasonable probability that the conditions
that resulted in Child’s removal or the reasons for placement outside the home
would not be remedied. Specifically, she asserts that she was not able to make
progress in completing services because of a lack of communication between
her and DCS. Mother claims that, because she was unable to improve her
situation, she was not able to continually engage in services. She maintains that
the juvenile court’s judgment should be reversed to offer a chance to improve.
[24] In determining whether there is a reasonable probability that the conditions that
led to a child’s removal and continued placement outside the home will not be
remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,
989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what conditions
led to the child’s placement and retention in foster care, and, second, we
3 Further, we note that section 31-35-2-4(b)(2)(A) is written in the disjunctive, and to properly effectuate the termination of parental rights, the juvenile court only needed to find that one of the three requirements of subsection (b)(2)(A) had been established by clear and convincing evidence. See Ind. Code § 31-35-2- 4(b)(2)(A); A.D.S. v. Ind. Dep’t Child Servs., 987 N.E.2d 1150, 1157 n.6 (Ind. Ct. App. 2013), trans. denied. Here, the juvenile court found both that Child had been removed from her parents for at least six months under a dispositional decree under (b)(2)(A)(i) and that Child had been removed from her parents and had been under the supervision of DCS for at least fifteen of the last twenty-two months under (b)(2)(A)(ii). Mother does not argue that the juvenile court erred in finding (b)(2)(A)(ii) was proven, and we, therefore, conclude that, even if there was not sufficient evidence to support that Child had been removed from Mother for at least six months under a dispositional decree, section (b)(2)(A) was sufficiently proven.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 14 of 21 determine whether there is a reasonable probability that those conditions will
not be remedied. Id. In the second step, the trial court must judge a parent’s
fitness at the time of the termination proceeding, taking into consideration
evidence of changed conditions and balancing a parent’s recent improvements
against “‘habitual pattern[s] of conduct to determine whether there is a
substantial probability of future neglect or deprivation.’” E.M., 4 N.E.3d at 643
(quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule, “trial courts have
properly considered 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.” In re D.B., 942 N.E.2d 867, 873 (Ind. Ct.
App. 2011). In addition, DCS need not 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 Involuntary Termination
of Parent-Child Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).
“We entrust that delicate balance to the trial court, which has discretion to
weigh a parent’s prior history more heavily than efforts made only shortly
before termination.” E.M., 4 N.E.3d at 643. When determining whether the
conditions for the removal would be remedied, the trial court may consider the
parent’s response to the offers of help. D.B., 942 N.E.2d at 873.
[25] Here, the conditions that led to Child’s removal were Mother’s drug use,
domestic violence involvement, neglect, and absence from Child’s life.
Appellant’s App. Vol. 2 at 23-27. Prior to removal, DCS had received reports of
domestic violence between Mother and Father in the presence of Child, and
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 15 of 21 when DCS attempted to contact Mother for an informal adjustment, it was not
able to locate her. Id. 23-24. When FCM Hewitt-Rooks went to the home to
speak to Father, she discovered he had been using methamphetamine, and
Mother’s whereabouts were not known. Id. at 25.
[26] As the CHINS proceedings were pending, Mother continued to fail to appear
for hearings and was absent from a detention hearing on December 6, 2016, an
initial hearing on December 12, 2016, and an informal hearing on January 4,
2017. Mother again failed to appear for the CHINS hearing on January 25,
2017, at which Father admitted to the allegations in the CHINS petition, and
the juvenile court entered a dispositional decree that ordered Child’s continued
removal from both Mother and Father’s care. Id. at 37-40.
[27] Mother appeared in court for the first time on February 8, 2017, but she then
failed to appear at review hearings held on April 26, 2017 and July 26, 2017.
Mother again appeared in court on October 4, 2017 for a permanency hearing
but failed to appear for hearings on October 25, 2017 and November 29, 2017.
Although Mother failed to appear at the dispositional hearing on November 29,
the juvenile court issued a dispositional decree that ordered Mother to
participate in various services, to maintain contact with DCS, to not use drugs,
and to maintain stable housing and employment. Mother then failed to appear
for periodic review hearings on January 3, 2018 and April 18, 2018.
[28] Evidence was presented that Mother struggled with substance abuse and that
she continued to use drugs and refused to cooperate with DCS and to
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 16 of 21 participate in substance abuse treatment and drug screens throughout the
proceedings. Tr. Vol. I at 18-19, 59-61. When Mother did complete drug
screens, she tested positive for methamphetamine, buprenorphine and
amphetamine. Her positive drug tests spanned the length of the proceedings,
starting in December 2016 and continuing to November 2017. Id. at 18-19, 51,
59; Pet’r’s Ex. 42 at 188-202. Mother was arrested a few weeks before the
termination hearing and charged with visiting a common nuisance that is
maintained for the unlawful use of controlled substances or items of drug
paraphernalia. Tr. Vol. I at 21. FCM Claycamp made a referral for Mother to
attend an inpatient treatment facility, but Mother failed to participate and failed
to appear for a follow-up referral. Id. at 57. Mother also failed to complete a
recommended home-based case management program and the recommended
services for domestic violence. Id. at 60-61.
[29] Mother failed to consistently visit Child. Over the course of the proceedings,
she only visited Child seven times out of fifty-five scheduled visitations. Id. at
33-37, 64; Pet’r’s Ex. 40. Additionally, Mother did not maintain consistent
contact with DCS throughout the proceedings, and FCM Claycamp described
communication with Mother as “sporadic.” Pet’r’s Ex. 18 at 83; Tr. Vol. I at 54.
Mother also failed to maintain stable housing during the proceedings, staying at
“three or four different places” and frequently ended up on “the streets.” Tr.
Vol. I at 13, 17, 76-77. At the time of the termination hearing, Mother was
living with a friend but was not on the lease and did not know that address. Id.
at 22-23. Additionally, Mother also failed to maintain stable employment, and
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 17 of 21 FCM Claycamp testified that Mother has not worked during the life of the case.
[30] DCS is not required to rule out all possibilities of change; it need only establish
that there is a reasonable probability the parent’s behavior will not change. In re
Kay L., 867 N.E.2d at 242. “A pattern of unwillingness to deal with parenting
problems and to cooperate with those providing social services, in conjunction
with unchanged conditions, support a finding that there exists no reasonable
probability that the conditions will change.” Lang v. Starke Cty. Office of Family
& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Also, as we
have recognized, “Even assuming that [the parent] will eventually develop into
a suitable parent, we must ask how much longer [the child] should have to wait
to enjoy the permanency that is essential to her development and overall well-
being.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct.
App. 2006), trans. denied. Although Mother requests that the juvenile court’s
judgment be reversed to provide her the chance to improve herself, she was
given ample opportunity and time to complete services and better herself during
the proceeding, and she failed to maintain contact with DCS or show any
progress in remedying the conditions that resulted in Child’s removal from her
care and continued placement out of her care. Based on the evidence
presented, we cannot say that the juvenile court clearly erred in concluding that
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 18 of 21 there is a reasonable probability that the conditions that resulted in Child’s
placement outside the home would not be remedied. 4
Best Interests of Child
[31] Mother argues that DCS failed to prove that termination was in the best
interests of Child because she was not given sufficient opportunity to engage
with the services offered by DCS and with Child. She contends that, because of
this lack of opportunity, is was not possible to determine if future harm to Child
was inevitable and making a determination that termination is in Child’s best
interests was premature.
[32] In determining what is in the best interests of the child, a trial court is required
to look at the totality of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct.
App. 2010) (citing In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.
denied), trans. dismissed. In doing so, the trial court must subordinate the
interests of the parents to those of the child involved. Id. Termination of a
parent-child relationship is proper where the child’s emotional and physical
development is threatened. Id. (citing In re R.S., 774 N.E.2d 927, 930 (Ind. Ct.
4 We need not address whether the juvenile court properly concluded that there was a reasonable probability that the continuation of the parent-child relationship posed a threat to Child’s well-being because Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of parental rights, the juvenile court need only find that one of the three requirements of subsection (b)(2)(B) has been established by clear and convincing evidence. A.D.S., 987 N.E.2d at 1157 n.6. Mother does not raise an argument that the juvenile court erred in concluding that the continuation of the parent-child relationship poses a threat to Child’s well-being and has, therefore, waived the issue for appeal. Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (stating that a party waives an issue where the party does not develop a cogent argument or provide adequate citation to authority and portions of the record), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 19 of 21 App. 2002), trans. denied). A parent’s historical inability to provide a suitable,
stable home environment along with the parent’s current inability to do so
supports a finding that termination is in the best interests of the child. In re A.P.
981 N.E.2d 75, 82 (Ind. Ct. App. 2012). Testimony of the service providers, in
addition to evidence that the conditions resulting in removal will not be
remedied, are sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.
Ct. App. 2014), trans. denied.
[33] A juvenile court need not wait until a child is irreversibly harmed such that his
or her physical, mental, and social development is permanently impaired before
terminating the parent-child relationship. In re A.K., 924 N.E.2d at 224.
Additionally, a child’s need for permanency is an important consideration in
determining the best interests of a child. Id. (citing McBride v. Monroe Cty. Office
of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)). At the time of
the termination hearing, Child had been removed from Mother’s care for
almost one and a half years, and Mother had failed to make the changes in her
life necessary to provide Child with a safe and healthy environment. As
discussed above, DCS presented sufficient evidence that there was a reasonable
probability that Mother would not remedy the reasons for Child’s removal from
her care. Additionally, FCM Claycamp and the CASA both testified that they
believed termination of Mother’s parental rights would be in Child’s best
interests. Tr. Vol. I at 66-67, 82-83. FCM Claycamp testified that the
conditions that caused Child’s removal would likely not be remedied due to
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 20 of 21 Mother’s failure to participate in services, her substance abuse, and the lack of a
stable job and housing. Id. at 65-67. Child’s therapist, O’Donnell, testified that
Child should not be returned to Mother’s care and that Child suffers from post-
traumatic stress disorder but had progressed “wonderfully” in her placement
outside of Mother’s care. Id. at 46-47. Based upon the totality of the evidence,
we conclude that the evidence supported the juvenile court’s determination that
termination of Mother’s parental rights was in Child’s best interests.
[34] Based on the record before us, we cannot say that the juvenile court’s
termination of Mother’s parental rights to Child was clearly erroneous. We,
therefore, affirm the juvenile court’s judgment.
[35] Affirmed.
Riley, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2119 | March 29, 2019 Page 21 of 21