In the Matter of the Termination of the Parent-Child Relationship of B.W., Minor Child, and A.T., Mother v. The Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 15 2018, 5:24 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rebecca M. Eimerman Curtis T. Hill, Jr.
Zionsville, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination May 15, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of B.W., Minor Child, and A.T., 32A01-1709-JT-2041
Mother, Appeal from the Hendricks
Appellant-Respondent, Superior Court
The Honorable Karen M. Love,
v. Judge
Trial Court Cause No.
The Indiana Department of 32D03-1608-JT-8
Child Services,
Appellee-Petitioner.
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 1 of 23
[1] A.T. (“Mother”) appeals the involuntary termination of her parental rights with
respect to B.W.1 Mother raises two issues which we restate as whether the trial
court erred in terminating her parental rights. We affirm.
Facts and Procedural History
[2] On April 14, 2015, the Indiana Department of Child Services (“DCS”) filed a
verified petition alleging that B.W., born November 5, 2012, was a child in
need of services (“CHINS”). The petition stated that B.W. had been removed
from his parent, guardian, or custodian and that, prior to removal, he was
residing with M.W. (“Father”), Mother, paternal grandmother
(“Grandmother”), and paternal grandmother’s boyfriend (“R.P.”). The petition
also stated:
a. On April 9, 2015, DCS received a report alleging [B.W.] was a
victim of neglect. The report alleged [Mother] had overdosed
on heroin five weeks ago and was currently hospitalized, that
[Father], [Grandmother], and [R.P.] are using heroin, and
that [Father] was incarcerated two days prior and is currently
in the Hendricks County Jail.
b. On April 13, 2015, Family Case Manager Dawn Owens
(FCM Owens) met with [Grandmother], [R.P.], and [B.W.]
in the home.
c. FCM Owens observed [R.P.] to be under the influence as his
limbs were severely jerking to the extent he was having
difficulty standing and speaking clearly.
1
The court also terminated the parental rights of B.W.’s father, and B.W.’s father does not appeal the
termination of his parental rights as to B.W.
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 2 of 23
d. [Grandmother] stated she knew [Mother] and [Father] were
using drugs and had seen them under the influence of
methamphetamine while caring for [B.W.].
e. [Grandmother] admitted to smoking marijuana while caring
for [B.W.].
f. [R.P.] admitted to using methamphetamine one or two times a
day and then caring for [B.W.] while under the influence.
g. On April 13, 2015, FCM Owens spoke with [Father] at the
Hendricks County Jail. . . .
*****
i. Father stated [Mother] had been using methamphetamine for
two or three months prior to being admitted to the hospital.
j. Father stated [R.P.] also uses methamphetamine. Father
stated [Grandmother] uses methamphetamine and Xanax.
k. Father stated he would care for [B.W.] while under the
influence of methamphetamine.
l. On April 13, 2015, FCM Owens spoke with [Mother] at St.
Vincent Hospital. Mother stated she had been hospitalized
for six weeks. Mother stated she had blood clots in her lungs,
endocarditis, was severely dehydrated, had pneumonia, and
kidney failure when she was admitted to the hospital.
m. Mother stated her health problems could be a result of her
past drug use but [she] did not admit to any drug use in the
past nine months. Mother stated she has not used heroin in
one year and she used methamphetamine one time nine
months ago.
n. Mother stated she thought [Grandmother] only used
marijuana.
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 3 of 23
Petitioner’s Exhibit 1. On the same day, the court appointed guardian ad litem
Suzanne Conger (“GAL Conger”) to the case. After his removal, B.W. was
placed with foster parents.
[3] On June 10 and 17, 2015, the trial court held hearings on the CHINS petition
and adjudicated B.W. to be a CHINS, finding that his physical condition was
seriously impaired or seriously endangered as a result of the inability, refusal, or
neglect of Mother, that his mental condition was seriously endangered as a
result of his exposure to domestic violence by Father on Mother, and that its
coercive intervention was necessary because “Mother does not protect [B.W.]
from the effect of Father’s physical abuse of Mother and Father’s serious drug
abuse in [B.W.’s] presence.” Appellant’s Appendix Volume 2 at 22. The court
also held that Mother was unlikely to meet B.W.’s needs, stating that
“[a]lthough Mother has made by [sic] passing several random drug screens, and
returning to work part[-]time[,] the evidence shows that [B.W.] would again be
placed in danger if he was returned to Mother without services from DCS.” Id.
at 22-23.
[4] On August 5, 2015, the court issued both a dispositional order and a
participation order. The first found that Mother tested positive for heroin based
on a June 17, 2015 drug screen and ordered that B.W. remain in the current
placement with supervision by DCS. The participation order required Mother
to participate in random drug screens within twenty-four hours of DCS’s
request and in supervised visitation with B.W. as scheduled, complete
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 4 of 23
substance abuse, mental health, and domestic violence assessments, and follow
all recommendations.2
[5] On November 18, 2015, the court held a periodic case review and found that
Mother had “not complied with [B.W.’s] case plan,” “not enhanced her ability
to fulfill her parental obligations,” and “not cooperated with DCS,” and that
the projected date for B.W.’s return home was “unknown due to parents [sic]
failure to cooperate.” Petitioner’s Exhibit 9. The court additionally noted in its
periodic case review order that Mother cancelled her parenting time on two
different occasions, was at risk of being discharged from services with Lifeline
as she has cancelled her appointments three times in November 2015, missed
two sessions with Families First and was discharged on September 10, 2015,
did not make two appointments and cancelled a third at Cummins Behavioral
Health, and had tested positive for illegal substances for DCS, probation, and
Cummins Behavioral Health. Id.
[6] On January 27, 2016, the court held another periodic case review, where it
found that Mother had not complied with B.W.’s case plan, enhanced her
ability to fulfill her parental obligation, or cooperated with DCS. The court
further found that Mother missed a drug screen on November 17, 2015, tested
positive for methamphetamine on November 4 and 11, 2015, had been referred
for but not completed a domestic violence assessment, cancelled two visits in
2
At the bottom, the participation order states “Distribution: . . . Counsel for [M]other.” Petitioner’s Exhibit
7.
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 5 of 23
November and one in December, missed several sessions with her caseworker
to work on parenting skills, housing, and budgeting, and had “off and on”
participation in part due to her incarceration for new criminal charges or
probation violations. Petitioner’s Exhibit 11.
[7] On March 23, 2016, the court held a permanency plan hearing, where it found
that B.W., who had been residing at his placement in foster care for
approximately eleven months, was progressing well and that Mother was:
not in compliance with the plan as follows: Mother has been
incarcerated in the Hendricks County Jail for this reporting
period for battery charges. Prior to her incarceration, Mother
was minimally compliant with services and appointments.
Mother maintained employment and a steady legal income to
provide for [B.W.]. Mother’s last positive drug screen was for
methamphetamine on November 4, 2015. Mother has not begun
her domestic violence assessment.
Petitioner’s Exhibit 13.3
[8] On April 1, 2016, Mother was released from jail in Hendricks County and
appeared for a violation before a court in Floyd County that required her to
complete twenty-eight days on house arrest, a period during which she moved
in with her mother who lived in Floyd County. At some point following her
release, she started having contact with B.W. by telephone. The phone calls
3
Near the end of the order under the line that stated “[t]he permanency plan for [B.W.] . . . is hereby and
continues to be approved by the court,” the court checked boxes next to “reunification” and “adoption.”
Petitioner’s Exhibit at 13.
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 6 of 23
occurred once a week and lasted three to five minutes. Home-based therapist
Diane Boody began supervising the calls in May of 2016 because B.W. would
refuse to talk to Mother, become distraught, cry, and turn his head away. After
the calls, B.W. continued being agitated and would lack concentration in
whatever therapeutic activity therapist Boody was conducting, or he would
express happiness and be eager to start. In August 2016, Mother met with
home-based mental health therapist Maryam Muhammad. On August 17,
2016, the court held a periodic case review and noted in its order that “Mother’s
therapist recommended Mother receive inpatient treatment for substance
abuse” and “DCS made a referral for inpatient treatment but Mother hasn’t
complied.” Petitioner’s Exhibit 16.
[9] On August 31, 2016, DCS filed its verified petition for involuntary termination
of Mother’s parental rights. On November 2, 2016, the court held an initial
hearing in Father’s termination case and a review hearing in the CHINS case.
Family case manager Andrea Hughes (“FCM Hughes”) testified that B.W.’s
behaviors of hitting, screaming, and acting out concerned DCS, that DCS had
seen increases and decreases in his behaviors depending on whether Mother
was having contact with him, and that, after communication between Mother
and B.W., the foster placement and the therapist would report back a concern
that B.W.’s behaviors increased. Therapist Boody indicated that B.W.’s
behaviors were discussed at a child and family team meeting in October 2015,
that Mother did not seem receptive to engaging in parenting education, and her
referral for B.W. had stated that he “was having trouble transitioning from
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 7 of 23
visits with Mother back to his foster care location.” Id. at 34, 38. She testified
that it was her recommendation that phone contact between Mother and B.W.
stop.
[10] On February 10, 2017, the court held a fact-finding hearing in Mother’s
termination case and heard testimony from licensed mental health counselor
Alexandra Swackhamer that she never had an actual mental health therapy
session with Mother and that Mother’s discharge was unsuccessful “because the
treatment objectives weren’t met and she didn’t follow through with
counseling.” Id. at 87. Addictions and outpatient therapist Denitra Taylor
testified that she completed a substance abuse assessment of Mother and
concluded that ongoing treatment was needed, she was not “able to get very far
in [her] treatment” of Mother, she remembered Mother “having three
consecutive absences, and that Mother was discharged unsuccessfully
“[b]ecause . . . services were not complete.” Id. at 98, 101. The court heard
testimony from family consultant Sheryl Barnett who began supervising
Mother’s visits with B.W. in May 2015 who stated that Mother missed the last
child and family team meeting. When asked how Mother responded when she
offered advice to help deescalate situations during supervised visits, Barnett
answered that Mother “tended to not – I mean I think she felt like it was her
child and she didn’t want to, you know, comply with what my suggestions on it
would be.” Id. at 115.
[11] When asked if Mother seemed willing to engage in services, therapist
Muhammad testified that Mother was “defensive at first and a little guarded”
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 8 of 23
and that prior to their last session sometime during the week of February 1,
2017, they had often spoke about how Mother’s ability to parent was affected
by her substance use and “she typically reported that she did not believe that
her parenting skills were affected by using the substances.” Id. at 141, 150-151.
She indicated that sometimes Mother denied she used drugs despite the positive
drug screens and that her only explanation was that she “may have mistakenly
taken her mom’s medication because the bottles were not marked.” Id. at 152.
Therapist Ashley Cebe, who had administered a substance abuse assessment on
January 10, 2017, testified Mother had told her that she used opiates prior to
being clean for three or four weeks, that “she said she was using I think
Suboxone,” and that prior to the three or four weeks of being clean there had
been a couple of short relapses. Id. at 169. Therapist Boody testified that
Mother saying she loved B.W. “seemed to be like a trigger” causing him to
“instantly leave the phone or react” and that Mother “said that [B.W.]
understood what she meant when she said she loved him” and “she would
continue each . . . phone call saying at the end I love you” despite Boody’s
suggestions to stick to “safer topics.” Id. at 187. GAL Conger testified that, in
certain child and family team meetings in which therapist Boody told Mother
about some behaviors she saw in B.W., Mother was “a bit defensive and didn’t
really think that those were occurring” and was “pretty defensive that he
doesn’t do that with me.” Id. at 234-235. GAL Conger stated her support
DCS’s request to terminate Mother and Father’s parental rights because they
have “had since April of 2015 when the . . . underlying CHINS case began to
correct what needed to be done and now we’re here at . . . 21 months.” She
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 9 of 23
testified that she believed termination of Mother’s parental rights was in B.W.’s
best interest because “he came into the system when he was a little over two
years old, two and a half, . . . and he’s been with the same foster parents and he
is being provided with consistency and routine at this point.” Id.
[12] After the court admitted Mother’s drug screens and results from Forensic
Fluids, FCM Hughes was shown a copy of the notice from February 2, 2017,
which “Mother signs when she consents to a drug screen,” and testified that
there was nothing written in the portion for listing the medications that she was
prescribed. Id. at 215. B.W.’s foster mother testified that B.W. started
exhibiting aggressive behaviors at some point after placement and that,
sometime after Mother’s visits completely stopped in January 2016, B.W. “did
not appear as what I look at as afraid,” “was able to relax more,” and “was
sleeping much better.” Id. at 249. She testified that, when Mother started
having telephone calls with B.W. again, the night terrors returned and he
became more aggressive. Transcript Volume 3 at 4.
[13] Mother indicated that she did not have contact with Father anymore, she
successfully completed domestic violence victim’s counseling and thought it
beneficial, and she chose to stay in Floyd County to “better [her] life and get
with my mom.” Id. at 43. She also testified that she “did miss a couple” of
face-to-face visitations due to being sick over the course of the five or six
months after being released from the hospital. Id. at 26. When asked what she
felt about refraining from telling B.W. that she loves him, she replied, “I feel
like I should be able to tell my son I love him because I don’t feel like it harms
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 10 of 23
him.” Id. at 33. She stated that between May and November 2016, she texted
B.W.’s foster parents to ask how he was doing “mainly on holidays.” Id. at 41.
She did not recall making any collect phone calls from jail to his foster parents.
To the question “[y]ou don’t think that [B.W. is] actually exhibiting these
behaviors,” she responded, “I don’t believe that – most of that – some of it’s
true honestly.” Id. at 45.
[14] On August 15, 2017, the trial court granted DCS’s petition for termination of
Mother’s parental rights. The order contained 105 very detailed findings which
addressed Mother’s parenting and drug use, the care and services provided to
B.W. while Mother was in the hospital, B.W.’s needs, his exposure to drugs
and domestic violence, and services ordered of Mother and her participation in
them. Specifically, the order found:
19. [B.W.] exhibited very challenging behavior issues when he
was removed from his parents. [B.W.] had great difficulty
sleeping. [B.W.] couldn’t sleep unless the lights in his room were
on. [B.W.] would wake up multiple times a week screaming with
nightmares. [B.W.] couldn’t tell the foster parents what he was
afraid of. At times, [B.W.] would just scream for no apparent
reason. [B.W.] was very aggressive with anyone he came in
contact with. [B.W.] would hit others including the children at
his preschool/daycare. [B.W.] constantly licked his fingers.
[B.W.] also had significant speech problems. When [B.W.] first
went to foster care, he would just say the word “no”. [B.W.’s]
behavior is consistent with sustained exposure to traumatic
events.
20. Foster parents and DCS got [B.W.] in First Steps and speech
therapy. Initially [B.W.’s] speech level was so low that he
couldn’t be tested in some areas of speech.
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 11 of 23
21. [B.W.] did not know how to interact with other children.
[B.W.] would go up to other children and just stand. He didn’t
know how to talk and/or ask to play with other children. [B.W.]
would become aggressive with other children by hitting them.
22. During his critical first years, [B.W.] was exposed [to]
several adverse childhood experiences (A.C.E.). His daily care
was provided by individuals under the influence of drugs, . . . he
was separated from his parents when they were arrested and in
jail, he was separated from his mother while she was in the
hospital for 8 weeks. [B.W.’s] physical and mental condition was
seriously impaired or seriously endangered as a result of his
parents[’] inability, refusal or neglect to provide him with the
necessary care, supervision and protection he needed. The
[CHINS] Court specifically found his mental condition was
seriously endangered as a result of his exposure to domestic
violence by Father on Mother.
*****
25. [B.W.] has been in therapy for over 14 months. During part
of that time he was having in[-]person visits with Mother until
she was arrested on new criminal charges and spent several
months in jail. The in[-]person visits with Mother did not go
well. Mother would focus on something she wanted [B.W.] to
do and keep at him until he became frustrated. [B.W.] would run
from Mother and she would chase him or [B.W.] would hit
Mother.
*****
27. After Mother was released from the Hendricks County Jail in
April 2016[,] Mother went to Floyd County where she was on
home detention. Mother had telephone visits with [B.W.]. . . .
The telephone visits were stressful for [B.W.].
*****
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 12 of 23
30. . . . [B.W.] needs consistency and predictability in his home
life.
31. [B.W.] needs [a] secure, stable, long[-]term continuous
relationship.
32. Mother has made some progress since she began working
with [Muhammad] in August of 2016. Mother has completed a
domestic violence assessment. Mother has started working on
her own mental health issues and she has participated in sessions
with [Muhammad] regularly. Mother has very recently
addressed her substance abuse issues by going to a suboxone
clinic.
33. However, Mother’s recent and short period of sobriety does
not outweigh her lengthy history of substance abuse.
*****
35. Continuation of the parent-child relationship between [B.W.]
and his Mother and Father is a serious threat to [B.W.’s] mental
and emotional health and condition today and long[-]term.
36. Recently Mother has made progress. Mother has stable
employment and stable housing. Mother is working toward
sobriety. Mother successfully completed domestic violence
counseling.
37. Mother wants to reunify with [B.W.]. However, Mother
made the decision to relocate several hours away from where
[B.W.] was placed. DCS’s decision to keep [B.W.] placed with
his original placement was reasonable. [B.W.] has serious
behavior issues and placement has been responsive to [B.W.’s]
needs. Mother’s relocation to Floyd County made visitation
with [B.W.] difficult. The Court gives more weight to Mother’s
prolonged failure to respond to services offered her than Mother’s
very recent progress.
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 13 of 23
38. Although Mother loves [B.W.] she does not have the current
ability to meet [B.W.’s] emotional and mental health needs. It is
not emotionally or mentally safe for [B.W.] to be in the care of
Mother at this time. . . . The child needs permanency now.
*****
40. [B.W.’s] needs outweigh Mothers’ [sic] interest in preserving
the parent-child relationship[].
*****
58. Mother received a comprehensive assessment in June of
2015 with [Swackhamer] at Families First. Mother was referred
for an assessment and counseling. Mother presented with
symptoms of depression and anxiety. [Swackhamer] developed a
Treatment plan for Mother to have individual weekly counseling
to help Mother develop coping skills and alleviate her symptoms
of anxiety and depression. Mother never followed up for
appointments and was unsuccessfully discharged approximately
90 days later.
*****
60. Mother had a dual diagnosis for substance abuse and mental
health. Mother disclosed she was raped and her trauma triggered
her substance use. Mother was not really committed to her
treatment. Mother did not make much progress with [Taylor].
Mother missed appointments and later was arrested on new
criminal charges . . . .
*****
76. Mother has tested positive for illegal drugs on the following
dates:
1-19-17 buprenorphine
11-28-16 buprenorphine
11-23-16 buprenorphine
11-9-16 buprenorphine
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 14 of 23
11-2-16 buprenorphine
10-12-16 xanax
8-17-16 morphine and G-Acetylorphine
6-23-16 morphine and G-Acetylorphine
8-28-15 methamphetamine and amphetamine
6-7-15 morphine and G-Acetylorphine
4-13-15 oxycodone
*****
80. [B.W] hasn’t seen his Mother since January of 2016.
*****
97. DCS has proved by a clear and convincing evidence that
there is a reasonable probability that [B.W.’s] emotional
connection to Mother will not be remedied in a way that is
emotionally and mentally healthy for [B.W.].
*****
102. Mother has had almost 22 months to address . . . her own
trauma and learn how to meet [B.W.’s] needs. Mother does have
employment and stable housing and may be able to meet
[B.W.’s] physical needs. However, Mother cannot safely meet
[B.W.’s] mental and emotional and behavioral needs and DCS
has proved by clear and convincing evidence that there is a
reasonable probability that Mother will not ever be able to meet
[B.W.’s] mental and emotional needs.
Id. at 33-53. The order concluded that DCS proved by clear and convincing
evidence that there is a reasonable probability the conditions that resulted in
removal of the child from the home or the reasons for continued placement
outside the home will not be remedied and that it is in the best interest of B.W.
that Mother’s parental rights be terminated.
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 15 of 23
Discussion
[15] The issue is whether the trial court erred in terminating Mother’s parental
rights. In order to terminate a parent-child relationship, DCS is required to
allege and prove, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2).4 If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. See Ind. Code § 31-35-2-8(a).
[16] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
4
Subsequently amended by Pub. L. No. 42-2017, § 2 (eff. July 1, 2017).
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 16 of 23
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. We do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
from the evidence. Id. We confine our review to two steps: whether the
evidence clearly and convincingly supports the findings, and then whether the
findings clearly and convincingly support the judgment. Id.
[17] Reviewing whether the evidence clearly and convincingly supports the findings,
or the findings clearly and convincingly support the judgment, is not a license to
reweigh the evidence. Id. “[W]e do not independently determine whether that
heightened standard is met, as we would under the ‘constitutional harmless
error standard,’ which requires the reviewing court itself to ‘be sufficiently
confident to declare the error harmless beyond a reasonable doubt.’” Id.
(quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due
regard” to the trial court’s opportunity to judge the credibility of the witnesses
firsthand,’ and ‘not set aside [its] findings or judgment unless clearly
erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,
989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 17 of 23
case that seems close on a ‘dry record’ may have been much more clear-cut in
person, we must be careful not to substitute our judgment for the trial court
when reviewing the sufficiency of the evidence.” Id. at 640.
[18] We note that the involuntary termination statute is written in the disjunctive
and requires proof of only one of the circumstances listed in Ind. Code § 31-35-
2-4(b)(2)(B). Because we find it dispositive under the facts of this case, we limit
our review to whether DCS established that there was a reasonable probability
that the conditions resulting in the removal or reasons for placement of B.W.
outside the home will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).
[19] In determining whether the conditions that resulted in B.W.’s removal will not
be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d at 642-643.
First, we identify the conditions that led to removal, 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, balancing a parent’s recent improvements
against habitual patterns 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 a parent’s past behavior is the best predictor of future
behavior. Id.
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 18 of 23
[20] “The statute does not simply focus on the initial basis for a child’s removal for
purposes of determining whether a parent’s rights should be terminated, but
also those bases resulting in the continued placement outside the home.” In re
N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citation and internal quotation
marks omitted). A court may consider evidence of a parent’s prior criminal
history, history of neglect, failure to provide support, lack of adequate housing
and employment, and the services offered by DCS and the parent’s response to
those services, and, where there are only temporary improvements and the
pattern of conduct shows no overall progress, the court might reasonably find
that under the circumstances the problematic situation will not improve. Id. A
trial court need not wait until a child is irreversibly influenced by a deficient
lifestyle such that his or her physical, mental, and social growth are
permanently impaired before terminating the parent-child relationship. In re
Z.C., 13 N.E.3d 464, 469 (Ind. Ct. App. 2014), trans. denied.
[21] Mother argues that insufficient evidence supports the trial court’s conclusions
that the conditions which resulted in B.W.’s removal and continued placement
outside the home will not be remedied by her. Specifically, she contends that
the evidence demonstrates she made significant progress in services and that the
CHINS wardship should have continued until such time as B.W. was ready for
contact and she had ample opportunity to prove that his placement out of the
home was no longer necessary. She asserts that she and Father no longer had
contact, that she successfully completed domestic violence counseling, she
actively participated in individual counseling, and that there is no evidence that
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 19 of 23
her “health conditions perpetuate her ability to provide care for B.W.” Id. at
15.
[22] DCS argues that Mother’s admitted history of substance abuse was part of the
reason for B.W.’s removal as shown in the unchallenged findings and that
Mother “simply did not benefit from the services provided her,” “had not
equipped herself to understand or to address [B.W.’s] special needs and
condition,” and “[t]hus, . . . was not equipped to safely and properly provide for
[B.W.’s] special needs, especially his emotional and mental health.” Appellee’s
Brief at 30. DCS contends Mother engaged in only “half-measures” despite
having access to services to improve her parental fitness since June 2015. Id. at
34. Specifically, it asserts that she failed to comply with her therapist’s
recommendation to receive “inpatient treatment for substance abuse,” that
B.W.’s therapist testified that Mother did not know how to communicate with
him or understand the trauma he had experienced in parental care, that she
blamed others for her failures, and that her visits began to decrease even before
she was incarcerated for battery. Id. at 32 (quoting Transcript Volume 4 at
103).
[23] To the extent Mother does not challenge the court’s findings, these
unchallenged facts stand as proven. See In re Involuntary Termination of Parent-
Child Relationship of B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to
challenge findings by the trial court resulted in waiver of the argument that the
findings were clearly erroneous), trans. denied; McMaster v. McMaster, 681
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 20 of 23
N.E.2d 744, 747 (Ind. Ct. App. 1997) (when the father failed to challenge
specific findings, this Court accepted them as true).
[24] With respect to Mother’s argument that CHINS wardship should have
continued until she had an opportunity to prove that B.W.’s placement out of
the home was no longer necessary, she fails to show how additional time, in
and of itself, would be of assistance when she has already been afforded a
significant period of time to fulfill the court’s requirements. The record reveals
that Mother minimally addressed her substance abuse from August 5, 2015,
when the trial court issued its participation order, until February 10, 2017,
when it held the termination hearing. During this period, she exceeded the
permissible number of missed appointments with addictions and outpatient
therapist Taylor and was discharged before successfully completing the services.
She also failed to take responsibility for her substance abuse by blaming Father
for her substance use, reporting that she believed her parenting skills were not
affected by substance abuse, and alleging a mix-up with her mother’s
medication when she tested positive for controlled substances. Under these
circumstances, we cannot say the trial court abused its discretion by
discontinuing the CHINS wardship when it did. While we observe Mother’s
participation in a suboxone clinic, we note that the trial court is given discretion
in balancing her very recent efforts at improvement against the habitual patterns
of her conduct, in determining that the evidence of Mother’s prior history is the
best predictor of her future behavior, and in finding that “Mother’s recent and
short period of sobriety does not outweigh her lengthy [history] of substance
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 21 of 23
abuse.” Appellant’s Appendix Volume 2 at 40. See In re E.M., 4 N.E.3d at 640
(noting that, although father’s “eventual efforts to establish a relationship with
his children were commendable,” his efforts were “both too little in view of his
violence and earlier pattern of hostility toward services, and too late in view of
the children’s urgent need for permanency after several years in out-of-home
placement”). Considering Mother’s unresolved substance abuse issues, together
with the trial court’s other findings, we conclude that clear and convincing
evidence supports the court’s determination that there is a reasonable
probability that the conditions leading to B.W.’s removal will not be remedied.
See In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014) (holding that there was
a reasonable probability that the conditions that led to the children’s removal,
including substance abuse, would not be remedied and noting that “while [the
mother] remedied two of the conditions that led to the children’s removal, there
was no evidence that she would remedy her substance abuse,” and “[e]ven
though [father] attended a month of treatment at Aspire, he failed to attend the
last eight weeks of his program, which caused Aspire to discharge him for non-
attendance”).
[25] While Mother does not argue that termination of her parental rights was not in
B.W.’s best interests, we observe that GAL Conger testified in support of DCS’s
request for termination and stated that it was in B.W.’s best interests for
Mother’s rights to be terminated because B.W. was “being provided with
consistency and routine at this point” after having come “into the system when
he was a little over two years old” and the “underlying CHINS case began.”
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 22 of 23
Transcript Volume 2 at 234-235. Our review of the evidence as set forth above
and in the record, including Mother’s history of substance abuse and multiple
positive drug screens, Mother’s refusal to implement parenting suggestions, and
B.W.’s relationship with Mother and behaviors, reveals that the evidence
supports the trial court’s best interests determination.
Conclusion
[26] We conclude that the trial court did not err in terminating the parental rights of
Mother.
[27] Affirmed.
Baker, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A01-1709-JT-2041 | May 15, 2018 Page 23 of 23