MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 21 2017, 8:48 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 Marianne Woolbert Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Robert J. Henke Majorie Newell Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 21, 2017 of the Parent-Child Relationship Court of Appeals Case No. of T.S., Mother, J.D.W., Father,1 48A02-1606-JT-1496 and J.W., Minor Child, Appeal from the T.S., Madison Circuit Court The Honorable Appellant-Respondent, G. George Pancol, Judge v. Trial Court Cause No. 48C02-1508-JT-61 Indiana Department of Child Services,
1 Father does not participate in this appeal; however, according to 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 48A02-1606-JT-1496 |February 21, 2017 Page 1 of 22 Appellee-Petitioner.
Kirsch, Judge.
[1] T.S. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to her child, J.W. (“Child”). On appeal, Mother raises the following
restated issue: whether the judgment terminating Mother’s parental rights was
clearly erroneous because it was based on insufficient evidence.
[2] We affirm.
Facts and Procedural History2 [3] Mother and J.D.W (“Father”) are the biological parents of Child, born June 6,
2004. Mother placed Child in the care of Father and Father’s girlfriend
sometime after December 25, 2013. A few days later, on New Year’s Eve,
Father checked himself into a rehabilitation center for alcoholism, leaving Child
in the girlfriend’s care. On January 4, 2014, the girlfriend kicked Child out of
2 The juvenile court also terminated Child’s father’s parental rights; however, the father does not appeal. Here, we set forth only the facts pertinent to the termination of Mother’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 2 of 22 the home, saying that she no longer wanted to care for Child. DCS Ex. N at 2.
The police became involved and contacted Mother, who said that she could not
at that time care for Child. Accordingly, DCS took Child into its custody.
[4] On January 8, 2014, DCS filed a petition alleging that Child was a child in need
of services (“CHINS”). When Mother did not appear at the initial hearing, the
CHINS court continued the hearing to January 22, 2014. At that time, Mother
again failed to appear, and the CHINS court entered a default order finding
Child to be a CHINS. At the February 2014 dispositional hearing, the CHINS
court set aside the default judgment and, over DCS’s objection, allowed Mother
to enter a general admission. The CHINS court then ordered Mother to
participate in and follow the recommended services, including, individual
counseling, parent evaluation, and substance abuse evaluation. The CHINS
court also ordered Mother to have supervised visitation with Child. At the July
2014 review hearing, the CHINS court found that Mother had not complied
with Child’s case plan, had continued to test positive for illegal substances, and
had failed to enhance her ability to fulfill parental obligations.
[5] About a year later, on July 23, 2015, the CHINS court ordered Child’s
permanency plan changed from reunification to adoption. By August 2015, the
CHINS court had suspended Mother’s visitation and most of her services. That
same month, DCS filed its petition to terminate Mother’s parental rights to
Child. At a review hearing, the juvenile court set the matter for a December
2015 fact-finding hearing, which was rescheduled to February 2016 on
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 3 of 22 Mother’s motion. Ultimately, the fact-finding hearing was held on February
23, 2016 and continued on May 16, 2016.
[6] During the course of the proceedings, Child was placed in her first foster home
in February 2014, where she remained until June 2014, at which time her foster
parents reported that they could no longer care for Child because she was
physically and verbally aggressive, and she could not get along with another
child in the home. In June 2014, Child was placed in a second foster home,
where she remained until December 2015. In December 2015, Child’s
behavior, again, resulted in Child being removed from the home, and when
Child threatened she was going to harm herself, she was admitted to the
hospital. After Child left the hospital, she was placed in a third foster home.
Child lived in the third foster home for only a few days until her behavior
caused her to be placed in a treatment facility; Child still lived in the treatment
facility at the time of the February 23, 2016 evidentiary hearing. On February
29, 2016, Child left the treatment facility and was placed in the fourth foster
home, where she resided at the time of the May, 16, 2016 hearing.
[7] A total of seven witnesses testified at the two-day evidentiary hearing.3 On the
first day of the hearing, Michelline Gaddis (“Gaddis”), a home-based therapist
with Youth Service Bureau, testified that she began working with Child around
December 2014, when Child was approximately ten years old. Gaddis met
3 We note that Mother arrived late at first day of the hearing held, on February 23, 2016, and did not appear at the second day of the hearing, held on May 16, 2016.
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 4 of 22 with Child on a weekly basis, but she never met Mother. Tr. at 15, 33. Tests
revealed that Child suffered from post-traumatic stress disorder. Id. at 18.
Accordingly, Gaddis determined that Child would benefit from “a trauma focus
CBT approach,” which was a twelve-week program, “working through a
workbook, . . . identifying emotions and those emotional triggers that go along
with trauma.” Id. at 16. Child had a “broken relationship” with Mother,
which manifested itself in Child’s aggression and feelings of abandonment. Id.
at 17-18. Gaddis testified that Child completed the program and made great
strides toward identifying emotions and their impact on her behavior, thereby,
allowing her to manage her behavior. Id. at 17. Right after completing the
program, Child “was in a really good place” and had “a toolbox . . . of coping
skills.” Id. at 19. However, Child was still visiting with Mother, which made
Child uncertain about her future and “frustrated about the whole situation of
not knowing what comes next for her.” Id. at 22-23. The visits also made
Child susceptible to emotional triggers, which in turn resulted in Child being
physically and verbally aggressive at school and at home. One evening, Child
was in “a high state of agitation” and was pacing and ripping up paper. Id. at
23. That night, Child’s behavior escalated to the point where she threatened
and choked her second foster mother. Id. at 22, 23.
[8] Gaddis testified that Child had been through complex trauma, having witnessed
violence while living with Mother. Id. at 24, 25. Additionally, individuals
came in and out of her life, which created “a lot of fear of the unknown[,] of
unknown people.” Id. at 26. Based on Child’s escalating bad behavior, and
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 5 of 22 because that behavior was affecting Child’s “daily functioning,” Gaddis
recommended that visitation with Mother be suspended. Id. at 28. Gaddis
stated that Child was “a bit calmer” after visitation with Mother was
suspended; however, Child was still aware of timelines and “where things were
in the Court setting.” Id. at 29. Gaddis testified that Child needed “security
and consistency,” and it was in Child’s best interest to “move on[,] . . . she
needs somebody to care for her.” Id. at 32.
[9] At the second day of the fact-finding hearing, Paula Scott (“FCM Scott”), a
DCS permanency family case manager, testified that Child was in her fourth,
and current, foster home, she was “doing very well” in her new placement, and
she was coming “out of her shell.” Id. at 49. During FCM Scott’s visits, Child,
initially, had been shy and would not speak for herself; now Child was “more
than willing to have a conversation.” Id. FCM Scott testified that Child now
carries on like a typical eleven-year-old girl, playing softball and doing well in
school. Id. As part of the CHINS dispositional order, Mother was ordered to
participate in individual and family counseling, complete parenting and
substance abuse evaluations, and take part in supervised visitation with Child.
Id. at 56. FCM Scott stated that Mother’s visitation with Child had been at the
home, but was moved after incidents where neighbors came to the house
“highly intoxicated” and others were present during visitation without
authorization. Id. at 65. When told that these interruptions were inappropriate,
Mother always responded, that she “couldn’t keep people away.” Id. FCM
Scott testified that, “it was always one excuse after another” as to why Mother
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 6 of 22 could not make her visits. Id. at 66. Mother’s visitation was suspended in July
2015 because she was not compliant with the visitation rules, she cancelled or
“no-showed” some of the visits, and Child asked to no longer visit with Mother.
Id. at 63-64. Mother had not seen Child since visitations were suspended. Id. at
69. Although Mother called a few times to say she wanted to reestablish visits
or phone calls with Child, FCM Scott testified that, “as with most things with
[Mother,] it’s always discussion and it’s never put into action.” Id. at 67. FCM
Scott testified that during the CHINS and termination proceedings, Mother had
been unable to keep consistent housing for herself. Id. at 68.
[10] FCM Scott testified that Mother had taken about twenty-five random drug
screens since January 2014, nineteen of which were positive, showing the
presence of substances such as amphetamine, methamphetamine, ephedrine,
THC, and cocaine. Id. FCM Scott testified that Mother complied with none of
the service recommendations, and communication with Mother was sporadic
because providers “always [had] to leave voice mails.” Id. at 78-79. FCM Scott
stated that the permanency plan for Child was adoption, and Child had made
progress toward that goal by “making herself responsible for her own actions
and her own behaviors” and the consequences therefrom. Id. at 80. FCM
Scott, who had last seen Child in late April 2016, stated, “[F]rom everything
that I’m hearing and seeing so far she is doing very well.” Id. at 81.
[11] Barbara Baumgartner (“Baumgartner”), a therapist with Meridian Health
Services, had worked with Child since March 2016. She testified that Child had
experienced significant trauma while living with Mother and, as a result, was
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 7 of 22 closed off and had trust issues. Tr. at 91. Baumgartner indicated that therapy
was going well and that Child “knows she needs to deal with the issues she is
facing.” Id. at 93. One aspect of the therapy encourages Child to build her self-
esteem so that she can talk about the emotional issues of her past. Id. at 94.
Baumgartner described that in the prior two months Child had improved in
matters of trust and emotional openness. Id. at 95. Baumgartner opined that
Child needs to be involved and given support, especially since further delving
into Child’s past will “trigger” challenging behavior. Id. at 96, 98. The current
foster mother is supportive and comes to most of the therapy sessions. Id. at 98.
Baumgartner stated that Child was progressing well in her current foster home,
and the family, who has one other child (“E.”), includes Child in family
activities and vacations. Id. at 96. Child is learning and adjusting to a “sibling
type of competitive experience.” Id. Baumgartner stated that predictability is
“monumental” for any child that has suffered the kind of trauma suffered by
Child, and it is also important for Child to have consistency, continuation, and
structure. Id. at 99-100. It was Baumgartner’s belief that the foster family
provides those things for Child. Id. at 98-100. Further, Baumgartner stated that
Child has only spoken of Mother once, and that was to say that she did not
want to see Mother. It was Baumgartner’s opinion that it would be detrimental
for Child to resume visitation or have contact with Mother, concluding that it is
in Child’s best interests to terminate Mother’s parental rights. Id. at 102.
[12] Karen Royer (“Royer”), a therapist with Villages of Indiana, had been involved
in the therapeutic visitation between Mother and Child since around August
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 8 of 22 2014. As such, she helped mediate the visits and trained Mother on parenting
skills. Royer stated that she was scheduled to meet with Mother once a week,
but Mother missed about one meeting a month. Royer testified that the
locations of the meetings changed from homes to libraries to motels because
Mother was “moving around from one place to another.” Tr. at 110-11. Royer
helped Mother focus on positive things in her life, such as maintaining sobriety
and developing judgment concerning who she could trust.4 Id. at 112. Main
goals for Mother were to establish stability in her life, get a job, get a home, and
try to reestablish positive relationships with family members. Id. Royer
testified that, to date, Mother had made limited progress, and she lacked
stability in both her housing and finances. Id. at 113-14. Royer stated that
Mother was usually late for her visits with Child and that Child asked that the
visits stop, knowing that Mother’s parental rights might be terminated. Id. at
116-17. When asked whether Mother’s parental rights should be terminated,
Royer stated that it is in Child’s best interest to stay in foster placement, mostly
because of Mother’s lack of stability in her life and her history of not being able
to parent a child that has severe behavioral problems. Id. at 119-20.
[13] Cory McCoy (“FCM McCoy”), a permanency family case manager for DCS,
had worked with Mother, since January 2016, in a CHINS case involving
Mother and her sixteen-year-old child (“C.”). The allegations against Mother,
4 In the past, one of Mother’s friends stole her clothes, and another stole her dog. Tr. at 113.
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 9 of 22 which were later substantiated, indicated that Mother and C. were homeless,
and Mother was abusing substances. A follow-up report stated that Mother and
C. had gotten into a fight, and Mother had broken C.’s hand. Id. at 124. C.
was removed from Mother’s care and placed in “kinship placement,” a home
where Mother and C. had previously lived. Id. at 128. There, C. sustained
third degree burns caused by sulfuric acid that she had been using to make
methamphetamine. Id. at 127. As part of services, Mother was ordered to take
drug screens. The most recent drug screen was conducted on April 8, 2016,
about one month before the termination hearing, and indicated a positive result
for the presence of methamphetamine and marijuana. Id. at 126.
[14] Delisa Strange (“Strange”), the current foster mother, testified that Child was
placed in her home in February 2016 and that Child lived with Strange, her
husband, and their son, E., who the parents had adopted after he was their
foster child. The family lives in a four-bedroom house with three dogs, and
Child has her own room. Strange, who testified that she did not work outside
the home, stated that Child was doing extremely well at the home, completes
required chores, and complies with house rules. Id. at 131. Child also does
well in school and plays softball two times a week, and Strange had not
received any negative reports from school. Child is easy to get along with,
friendly, respectful, and well-mannered in public. Strange stated that Child is
“just a sweet kid[],” and although “we still have our quirks,” “we all seem to be
getting along pretty well.” Id. at 131. Strange indicated that Child was going to
accompany the family on vacations to Virginia Beach and outings to French
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 10 of 22 Lick and the Daytona Air Museum. Id. at 132. Strange reported that, with the
help of Baumgartner’s therapy, Child and E. have learned that they both have a
spot in the home and that no one is being pushed out. Id. at 33. Strange has
helped Child with her reading, takes Child and E. to the library, and is
encouraging Child to meet her parenting goals. Id. at 134. Child has expressed
to Strange that she loves the family and wants to stay in the home, but she
understands that, since she has lived in the home for only a few months, things
will be taken day to day, and adoption will be discussed when it is time. Id. at
137.
[15] Nellie Elsten, Child’s court appointed special advocate (“the CASA”), was
appointed in September 2015. The CASA, who visited with Child once a
month, testified that she last had contact with Child in April 2016. Id. at 141.
Prior to placement with the Strange family, Child was shy, and her voice was
very soft for the first half hour of the CASA’s visit. In the current foster home,
Child is “a very different child”; she is outgoing and talkative, speaks for
herself, and is cheerful. Id. at 142. The CASA testified that it is in Child’s best
interests that Mother’s parental rights be terminated to allow Child to be placed
for adoption. Id.
[16] At the close of the fact-finding hearing, the juvenile court found that DCS had
met its burden of proof, and it granted DCS’s request to terminate Mother’s
parental rights. Id. at 143. On June 8, 2016, the juvenile court entered its order
terminating Mother’s parental rights. Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 11 of 22 Discussion and Decision [17] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.
“However, a trial court must subordinate the interests of the parents to those of
the child when evaluating the circumstances surrounding a termination.” Id. at
1188. Termination of a parent-child relationship is proper where a child’s
emotional and physical development is threatened. Id. “Although the right to
raise one’s own child should not be terminated solely because there is a better
home available for the child, parental rights may be terminated when a parent is
unable or unwilling to meet his or her parental responsibilities.” Id.
[18] Before an involuntary termination of parental rights may occur, DCS 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[;]
....
(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.
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 12 of 22 (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’s burden of proof for establishing these
allegations in termination cases is one of clear and convincing evidence. K.T.K.
v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013). 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).
[19] When reviewing a termination of parental rights issue, our court will not
reweigh the evidence or judge the credibility of the witnesses. In re R.S., 56
N.E.3d 625, 628 (Ind. 2016). We consider “only the evidence and any
reasonable inferences therefrom that support the judgment,” and give “‘due
regard’ to the trial court’s opportunity to judge the credibility of the witnesses
firsthand.” K.T.K., 989 N.E.2d at 1229. Here, in terminating Mother’s
parental rights to Child, the juvenile court entered specific findings and
conclusions. When a trial court’s judgment contains specific findings of fact
and conclusions thereon, we apply a two-tiered standard of review. In re R.S.,
56 N.E.3d at 628. First, we determine whether the evidence supports the Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 13 of 22 findings, and second, we determine whether the findings support the judgment.
Id. We will set aside the trial court’s judgment terminating a parent-child
relationship only if it is clearly erroneous. Id. A judgment is clearly erroneous
if the findings do not support the trial court’s conclusions or the conclusions do
not support the judgment. 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.
[20] In its May 26, 2016 order terminating Mother’s parental rights to Child, the
juvenile court entered the following pertinent findings of fact, which we
paraphrase as follows:
8. Throughout the underlying CHINS proceeding, Mother was inconsistent and had no meaningful participation in services. Mother did not comply with either services or dispositional orders, and she has continued to test positive for illegal substances including methamphetamine, amphetamine, marijuana (THC), cocaine, hydrocodone, and ephedrine or some combination thereof. Although Mother had intermittent and inconsistent supervised visitation with Child, Mother had no meaningful or consistent visitation or interaction with Child from June 2015 through May 16, 2016.
10. The Family Case Manager, Child’s therapist, Mother’s therapist, and the CASA believe it would be in the best interest of Child for the court to grant the Petition and to terminate the parent-child relationship. This is due to Mother’s inconsistency and lack of participation in any services or efforts toward reunification with Child, her inconsistency in visitation services, the detrimental and harmful impacts to Child from contact and interaction with
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 14 of 22 Mother, and Mother’s ongoing substance use. Adoption is a satisfactory plan for permanency for Child.
Appellant’s App. at 24-25.
[21] The juvenile court terminated Mother’s parental rights, concluding: (1) Child
had been removed from the care and custody of Mother and under the terms of
a dispositional decree for more than six months; (2) there is a reasonable
probability that the continuation of the parent-child relationship between
Mother and Child poses a threat to the well-being of Child; (3) there is a
reasonable probability that the conditions that resulted in Child’s removal from
and continued placement outside the care and custody of Mother will not be
remedied; (4) termination of Mother’s parental rights is in the best interests of
Child; and (5) DCS’s plan for the care and treatment of Child, that being
adoption, is satisfactory. Id. at 26.
[22] Mother challenges none of the juvenile court’s findings. As a result, Mother
has waived any argument relating to whether these unchallenged findings are
clearly erroneous. See McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct.
App. 1997) (unchallenged trial court findings were accepted as true). Mother
also does not dispute that DCS presented sufficient evidence to support the
following elements: (1) Child has been removed from parent for at least six
months under a dispositional decree pursuant to Indiana Code section 31-35-2-
4(b)(2)(A)(i); and (2) there is a satisfactory plan for the care and treatment of
Child, i.e., adoption, under Indiana Code section 31-35-2-4(b)(2)(D). Instead,
Mother argues that DCS failed to prove by clear and convincing evidence that Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 15 of 22 conditions that resulted in the removal of Child will not be remedied, that the
continuation of the parent-child relationship with Mother poses a threat to
Child, and that termination of Mother’s parental rights is in Child’s best
interest.
Remediation of Conditions
[23] Mother first argues that DCS did not meet its burden of proving two of the
elements under Indiana Code section 31-35-2-4(b)(2)(B). It is well-settled that
because Indiana Code section 31-5-2-4(b)(2)(B) is written in the disjunctive, the
juvenile court need find only one of the following: (1) the conditions resulting in
removal from or continued placement outside the parent’s home will not be
remedied; (2) the continuation of the parent-child relationship poses a threat to
the child; or (3) the child has been adjudicated CHINS on two separate
occasions. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans.
denied. Therefore, where the juvenile court determines one of the above-
mentioned factors has been proven, and there is sufficient evidence in the
record supporting the juvenile court’s determination, it is not necessary for DCS
to prove, or for the juvenile court to find, any of the other factors listed in
Indiana Code section 31-5-2-4(b)(2)(B). In re S.P.H., 806 N.E.2d 874, 882 (Ind.
Ct. App. 2004). Accordingly, we focus only on the element of whether the
conditions that led to removal and placement outside Mother’s care will not be
remedied.
[24] In determining whether the conditions that resulted in Child’s removal from or
continued placement outside Mother’s home will not be remedied, we engage Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 16 of 22 in a two-step analysis. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). First, we
identify the conditions that led to removal or continued placement of Child
outside Mother’s care, and second, we determine whether there is a reasonable
probability that those conditions will not be remedied. Id. at 643. “In the
second step, the trial court must judge a parent’s fitness as of the time of the
termination proceeding, taking into consideration evidence of changed
conditions,” that is, balance a parent’s recent improvements against “habitual
pattern[s] of conduct to determine whether there is a substantial probability of
future neglect or deprivation.” Id. “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.” Id. “Requiring trial courts to
give due regard to changed conditions does not preclude them from finding that
parents’ past behavior is the best predictor of their future behavior.” Id.
[25] The conditions resulting in Child’s removal from or continued placement
outside Mother’s home included Mother’s lack of stable housing, her drug use,
and her inability to care for Child. From January 2014 through May 2016,
Mother “moved around from place to place,” living in various homes, with
friends, and occasionally at a local motel. Id. at 110-11. During that same time
frame, Child was never returned to Mother’s care, but lived in four separate
foster homes and one treatment facility. Child had a “broken relationship”
with Mother, which manifested itself in aggressive behavior. Id. at 17-18.
Child was transferred from one place to another due to her physical and verbal
aggression and her inability to get along with the foster parents or other children
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 17 of 22 in the home. Child suffered from post-traumatic stress disorder due to violent
events that occurred while she was in Mother’s care. Tr. at 25. Mother’s initial
visitation with Child was in Mother’s home, but that changed because Mother
did not have consistent or stable housing. Further, Child’s visits in Mother’s
home were interrupted by intoxicated neighbors and persons unauthorized to be
in the home; Mother claimed she could not keep people away. Id. at 65. Visits
with Mother made Child more susceptible to emotional triggers. Id. at 21, 116-
17. Initially, Child was shy and would not speak for herself, she had low self-
esteem, and her aggressive behavior got her into trouble both at home and at
school. Drug use was one of the reasons that Mother was unable to care for
Child. However, Mother did not change her behavior. Of the twenty-five
random drug screen that Mother participated in, Mother tested positive for
illegal drugs in nineteen of them. Id. at 73. Mother’s most recent positive drug
screen was April 8, 2016, one month before the final fact-finding hearing. Id. at
126. In January 2016, one month before the first fact-finding hearing, Mother
was involved in another CHINS pertaining to her older child, C. The
allegations, later substantiated, were that Mother and C. were homeless,
Mother was abusing drugs, Mother broke C.’s hand during a fight, and, while
in a “kinship placement,” C. was seriously burned while making
methamphetamine. Id. at 124, 127. Royer testified that Mother had made
limited positive progress during the CHINS and termination proceedings. Id. at
114.
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 18 of 22 [26] Mother argues that termination of her parental rights is not appropriate because
she “has demonstrated that she is not unwilling to cooperate with [DCS].”
Appellant’s Br. at 15. Mother’s cooperation, however, is not the question.
Instead, this court must determine where the conditions that resulted in Child’s
removal from or continued placement outside Mother’s care will not be
remedied. The juvenile court determined that these conditions will not be
remedied. From the evidence before us, it was reasonable for the juvenile court
to reach that conclusion. Having found that conditions will not be remedied,
we need not reach Mother’s claim that the continuation of the parent-child
relationship poses a threat to Child. See In re S.P.H., 806 N.E.2d at 882
(unnecessary to prove continuation of parental relationship poses threat where
evidence is sufficient that conditions will not be remedied).
Best Interests of Child
[27] Mother next challenges the juvenile court’s finding that termination of her
parental rights is in Child’s best interests. Citing to Rowlett v. Vanderburgh
County Office of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct. App. 2006),
trans. denied, Mother argues that stability and permanency cannot be the sole
basis for the termination. Appellant’s Br. at 16. We agree. As our court recently
reiterated, “a need for permanency, alone, is not a sufficient basis for
terminating parental rights.” In re A.S., 17 N.E.3d 994, 1006 (Ind. Ct. App.
2014), trans. denied. Here, however, stability and permanency are far from being
the sole reasons that the juvenile court terminated Mother’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 19 of 22 [28] In determining what is in the best interests of a child, the trial court must look
beyond the factors identified by DCS to the totality of the evidence. A.D.S., 987
N.E.2d at 1158. In so doing, the court must subordinate the interests of the
parents to those of the child. Id. The court need not wait until the child is
irreversibly harmed before terminating the parent-child relationship. Id.
“Moreover, we have previously held that the recommendation 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 the
child’s best interests.” Id. at 1158-59.
[29] Here, DCS proved that there is a reasonable probability that the circumstances
leading to Child’s removal from or continued placement outside Mother’s care
will not be remedied. In its order terminating Mother’s parental rights, the
juvenile court cited to Mother’s lack of participation in reunification services,
her inconsistency in visiting Child, her noncompliance with services, the
harmful impact that visits with Mother had on Child, and Mother’s ongoing use
of illegal drugs. Appellant’s App. at 25. While these factors, alone, could be
sufficient to support the termination of Mother’s parental rights, the evidence
also reveals that Mother made only limited progress toward positive change,
she did not have a stable home, she was financially unstable, and Child, who at
the time of the hearing was almost twelve years old, asked that visits with
Mother be stopped. Tr. at 113-14, 116. Moreover, at the time of the fact-
finding hearing, Mother was unable to parent Child’s older sister, C.
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 20 of 22 [30] Gaddis reported that Child has a broken relationship with Mother and is
suffering from post-traumatic stress disorder as a result of time spent with
Mother. Id. at 16-18. FCM Scott and Strange testified that Child had been
living in her current placement for three months, and she was doing extremely
well. Id. at 49, 131. Child is friendly, respectful, easy to get along with, and is
well mannered in public. Id. at 131. Child does well in school and plays
softball two times a week. Id. at 132. Child is included in family trips and loves
the Strange family, they love her, and she hopes they can adopt her. Id. at 132,
138, 139. Therapist Baumgartner testified that Child is doing well in her foster
home and gets the support that she will need as she continues in therapy to
delve deeper into her memories. Id. at 95-98. The CASA testified that Child is
a “very different person” in her current home; she is outgoing, talkative, and
cheerful. Id. at 142. Further, Gaddis, Baumgartner, Royer, and the CASA all
testified that it would be in Child’s best interests for Mother’s parental rights to
be terminated. Id. at 32, 102, 119-20, 142. The trial court did not err in its
determination that termination of Mother’s parental rights is in Child’s best
interests.
[31] We will reverse a termination of parental rights only upon a showing of “clear
error” – that which leaves us with a definite and firm conviction that a mistake
has been made. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). 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.
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 21 of 22 [32] Affirmed.
[33] Robb, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1606-JT-1496 |February 21, 2017 Page 22 of 22