In the Matter of the Termination of the Parent-Child Relationship of D.F., Father, K.P., Mother, and W.F., Minor Child, K.P. v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 31 2020, 9:02 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Alexander L. Hoover Curtis T. Hill, Jr.
Law Office of Christopher G. Walter, Attorney General of Indiana
P.C.
Steven J. Hosler
Nappanee, Indiana David E. Corey
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 31, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of D.F., Father, K.P., Mother, 19A-JT-1802
and W.F., Minor Child, Appeal from the
K.P., Starke Circuit Court
The Honorable
Appellant-Respondent,
Kim Hall, Judge
v. Trial Court Cause No.
75C01-1812-JT-24
Indiana Department of Child
Services,
Appellee-Petitioner.
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Kirsch, Judge.
[1] K.P. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to her minor child, W.F. (“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] Mother and D.F. (“Father”)1 are the biological parents of Child, who was born
on February 9, 2016. On September 4, 2017, a report was received on the
Indiana Department of Child Services (“DCS”) hotline regarding Child.
Mother and Father were arrested after a traffic stop that was initiated due to a
report of domestic violence between Mother and Father while in the car. Tr.
Vol. 2 at 8; CASA Ex. 1 at 95. During the traffic stop, the police found illegal
drugs in the car. DCS Ex. 3 at 9. Mother was charged with Level 6 felony
possession of methamphetamine and Class A misdemeanor possession of a
controlled substance, and Father was charged with Level 6 felony domestic
battery. Tr. Vol. 2 at 12-13. Child was present in the car during the alleged
domestic violence incident and traffic stop, and because the arrests of Mother
1
Father’s parental rights were also terminated on July 11, 2019 in the same order that terminated Mother’s
parental rights. However, Father does not join in this appeal. We will, therefore, confine the facts to only
those pertinent to Mother’s appeal.
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and Father left Child without a caregiver, Child was removed from their care
and placed in foster care. Id. at 8, 10. The DCS family case manager (“FCM”)
that removed Child asked Mother if she would be willing to submit to a drug
screen, and Mother declined. Id. at 9. Mother informed the FCM that she had
recently been in drug treatment but had relapsed approximately three days
before. DCS Ex. 3 at 10.
[4] On September 5, 2017, DCS filed a petition alleging that Child was a child in
need of services (“CHINS”), and on October 3, 2017, Child was adjudicated to
be a CHINS when Mother and Father admitted the allegations. In a
dispositional decree on October 31, 2017, the juvenile court ordered Mother
and Father to complete substance abuse treatment or other programs
recommended by DCS, submit to random drug screens, and complete any
domestic violence assessments or programs recommended by DCS. DCS Ex. 4
at 13-14. Child was placed in the care of a paternal cousin, and all visitation
with Child by Mother and Father was to be in a supervised setting. Id. at 14.
FCM Caitlyn Young (“FCM Young”) was assigned to the case.
[5] After her arrest, Mother was released on pretrial supervision through the Starke
County Probation Department and ordered to begin drug treatment. Tr. Vol. 2
at 19. Mother initially complied with the reunification services ordered by the
juvenile court and began home-based services and visitations at the end of
October 2017. Id. at 24. However, DCS was unable to locate Mother from
about November 2, 2017 to December 7, 2017, and it was eventually discovered
that she had been arrested for a violation of her pretrial release and was in the
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Starke County Jail. Id. at 25. On November 22, 2017, Mother’s bond was
revoked and a warrant for her arrest was issued after she failed to attend
scheduled appointments with a probation officer. DCS Ex. 13; Tr. Vol. 2 at 27.
Mother also failed to notify the court or her probation officer that she was not
residing at the address provided at intake and failed to attend six scheduled
drug treatment classes. DCS Ex. 13; Tr. Vol. 2 at 27. On November 30, 2017,
Mother was arrested on the warrant, and she tested positive for
methamphetamine and was found to be carrying a bottle of alcohol at the time
of her arrest. DCS Ex. 16.
[6] Shortly after December 7, when DCS had located Mother, FCM Young went
to the jail and offered Mother a drug screen, and Mother refused, stating that
she wanted “to wait to do a drug screen until it would be clear.” Tr. Vol. 2 at
25. Mother was released from jail on January 17, 2018 after she pleaded guilty
to possession of methamphetamine from her September 4, 2017 arrest and was
sentenced to thirteen months on probation. Id. at 25-26, 28. After her release
from jail, Mother contacted FCM Young and informed her that Mother wished
to begin her random drug screens, have visitations start, and reinstate services.
Id. at 29. In January 2018, Mother began substance abuse treatment at Keys
Counseling, and she completed a substance abuse assessment and was
recommended for individual and group classes. Id.
[7] At a review hearing about a month later, it was found that Mother was
participating in services and visitations with Child. DCS Ex. 5. On April 20,
2018, Mother called FCM Young from the Economy Inn where she was staying
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with Father and reported that Father was intoxicated and had become
belligerent. Tr. Vol. 2 at 32. He had thrown his keys at Mother, making Mother
upset. Id. The hotel staff had called the police, and Father was arrested;
Mother then became upset because she did not want Father to be arrested. Id.
at 33.
[8] At a review hearing held on May 1, 2018, Mother was still complying with
services, and the juvenile court approved DCS’s request that Mother have
partially supervised visits with Child as long as she maintained her sobriety,
participated in services, and worked on obtaining stable housing. Id. at 35; DCS
Ex. 6 at 20. At that time, Mother and Father were still together, but had moved
from the Economy Inn in Starke County to the Red Rock Inn in Plymouth,
Indiana. Tr. Vol. 2 at 35-36. Mother and Father failed to show up to a meeting
with DCS on June 29, 2018, to discuss future visitation plans. Id. at 36. FCM
Young tried to contact them several times and did not receive a response. Id.
She then went to the Red Rock Inn to check on Mother and Father and to
administer a drug screen. Id. Mother tested negative, but Father refused to be
screened. Id. at 37. Mother was upset with Father for refusing to be screened
and left him at the Red Rock Inn, moving across the street to a different motel.
Id. Father ceased participating in any services after June 29, 2018. Id.
[9] After this failure to show up for the meeting, Mother’s compliance with services
was off and on, and she cancelled a couple of visits with Child and
appointments with her service providers because she was “trying to get on her
feet” and “figure out what life would be like . . . as a single parent.” Id. at 45.
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Throughout July 2018, Mother communicated with FCM Young, but was not
“super compliant in her services.” Id. at 46. In August, she moved to
Pierceton, Indiana to live with a family friend, and she requested that her
services be moved to that area. Id. At that time, Mother was employed in
Plymouth, but she later left that employment to search for a job closer to where
she was living in Pierceton. Id. at 46-47.
[10] At a permanency hearing held on August 21, 2018, Mother was still compliant
with services and showing progress. Id. at 47. A permanency plan for
reunification and a concurrent plan of guardianship was put into place at that
time. Id. However, between August 2018 and December 2018, Mother’s
progress began to falter. During that time, Mother had multiple interviews for
new jobs set up, but she either failed to show up for the interviews or failed to
follow the instructions of the hiring company and was not hired. Id. at 48. She
also cancelled or failed to appear at several appointments with her service
provider and several visitations with Child. Id. Mother had anger management
issues, and during this time frame, it became worse. Id. at 49. Mother would
become angry and “would call and cuss out [the] service providers or cuss them
out in person” when they were late to drive Mother to visitations by as little as
five to ten minutes. Id. When Mother made demands for time and schedule
changes that FCM Young or service providers could not accommodate, Mother
“would yell and scream and . . . use curse words towards [FCM Young], until
[FCM Young] had to end the phone call.” Id. Although ordered to do so,
Mother failed to complete any services for anger management. Id. at 159-60.
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[11] Mother also became angry in front of Child, specifically when Child called the
foster placement “Mom.” Id. at 50. Mother yelled and screamed at Child that
the foster parent was not her mother. Id. Mother would also raise her voice if
she became agitated during visitation. Id. Child had been diagnosed with
PTSD with dissociative symptoms, and her triggers are loud sounds. Id. at 98-
99, 101. Child responded poorly to raised voices “because she is a child of a
domestic violence relationship, and she really struggles with raised voices.” Id.
at 50.
[12] After Father stopped participating in services, there was a change in Child’s
behavior during visits between Mother and Child. Id. at 51. Child began to
show more aggression, and on one occasion, Child tried to throw a television
remote at Mother. Id. FCM Young stated that Child was less engaged in visits
with Mother, and Child was happy when Mother cancelled visits. Id. Child
also started correcting FCM Young when she called Mother “mom”; Child
corrected FCM Young’s statement by calling Mother by her first name. Id. at
51-52. During visitations, Mother also had difficulty in providing nutritious
meals for Child although she had been provided educational tools on nutrition
for Child. Id. at 85. The service provider opined that in the beginning, Mother
lacked knowledge, but after being provided the tools and education, the service
provider saw “the follow through for a while, but [Mother] just doesn’t
maintain.” Id.
[13] In December 2018, Mother was no longer living with her family friend in
Pierceton, and she refused to provide DCS with her address, telling FCM
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Young that it “was none of [her] business.” Id. at 52. At that time, Mother
relapsed and tested positive for methamphetamine, oxycodone, and THC. Id.
FCM Young set up a meeting with Mother in early December to try to get her
back on track with services, and when Mother came to the office, she was
visibly impaired. Id. at 53. FCM Young did a drug screen, and Mother “could
barely write her name on the drug screen”; she tested positive for oxycodone.
Id. at 53. After that positive screen, Mother tested positive for both
methamphetamine and THC. Id. On December 11, 2018, a review hearing
was held at which the juvenile court found that Mother had ceased to comply
with DCS and had relapsed. DCS Ex. 8 at 25. The juvenile court also found
that Mother was inconsistent with home-based casework, visitation, and she
lacked stable housing and had failed to maintain consistent communication
with DCS, CASA, and service providers. Id. At that time, DCS stopped
providing services to Mother, and the permanency plan was changed to
termination of parental rights and adoption. Id.
[14] On December 18, 2018, DCS filed its petition to terminate Mother’s parental
rights to Child. Appellant’s App. Vol. II at 9-11. On May 29, 2019, the juvenile
court held the factfinding hearing on DCS’s termination petition. At the
hearing, evidence was presented regarding Mother’s struggles with substance
abuse, and her multiple relapses. Mother had completed three drug treatment
programs and relapsed after two during the CHINS case. Tr. Vol. 2 at 54. At
the time of the hearing, Mother had voluntarily entered into another drug
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treatment program, which she completed on May 28 and was scheduled to
begin relapse prevention services. Id. at 113-14.
[15] Testimony was given by one of Mother’s service providers who provided case
management services involving parenting, domestic violence, substance abuse,
and behavioral techniques to cope with anger. Id. at 72-73. The service
provider worked with Mother on her behavior and coping skills, and although
Mother was receptive to learning the skills, often “there was no follow through”
with the techniques shown. Id. at 77. The service provider summed up the
progress she made with Mother as, “I saw a little progress. But by the end of
the services, it was still pretty much the same.” Id. at 78.
[16] Evidence was also presented that Mother was not able to obtain stable housing
or employment throughout the proceedings even with help from the service
providers. Id. at 74-75. When she was with Father, they lived in several
different motels, and Mother lived with her grandmother occasionally and with
her family friend for a period of time. Id. at 75. After she moved out of the
family friend’s home, Mother would not provide an address to DCS, but on
March 19, 2019, she had moved into her grandfather’s home and still resided
there at the time of the hearing. Id. at 52, 108. When services first began,
Mother had no employment, and over the course of the proceedings, she
worked two or three factory jobs and cleaned houses but was unable to
maintain steady employment. Id. at 75-76. At the time of the hearing, Mother
was not employed and had not been employed since August 2018. Id. at 142.
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[17] On the date that the hearing was held, Child had been removed from Mother’s
care for twenty months and was placed in a stable home. Id. at 55-56. FCM
Young testified that Child required a stable home that provides for her needs
and that Child was bonded to the foster placement and the other children in the
home. Id. at 56. The plan for Child’s care was adoption by the current
placement family, Father’s first cousins. Id. FCM Young testified that
termination of Mother’s parental rights and adoption was in Child’s best
interest because “Mother . . . had not shown that [she was] able to meet the
needs of the child. [She hasn’t] shown stability or sobriety. [Mother] hasn’t
communicated with DCS about stability in her income, stability in her housing.
She hasn’t shown improvement in her anger management.” Id.
[18] Child’s court appointed special advocate, Cortny Barnes (“CASA Barnes”) filed
a court report on May 29, 2019. CASA Ex. 1 at 96. CASA Barnes reported that
Child “is happy and healthy in relative care. She is growing and developing
cognitively as she should. [Child] is an extremely happy little girl that is shy
when she first meets people.” Id. CASA Barnes agreed with DCS and
recommended that parental rights of Mother be terminated, and Child remain
with her foster placement to be adopted. Id.
[19] At the conclusion of the hearing, the juvenile court took the matter under
advisement. On July 11, 2019, the juvenile court issued its order and findings
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of fact and conclusions thereon terminating Mother’s parental rights. 2 Mother
now appeals.
Discussion and Decision
[20] 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 not wait until
2
We wish to commend the juvenile court on its thorough findings of fact and conclusions thereon, which
greatly aided in our determination of this case.
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the child is irreversibly harmed such that her physical, mental, and social
development is permanently impaired before terminating the parent-child
relationship. Id.
[21] 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).
[22] 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.
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[23] Before an involuntary termination of parental rights may occur, the State 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). 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).
[24] Mother contends that the juvenile court erred when it terminated her parental
rights because DCS failed to meet its burden by clear and convincing evidence.
Specifically, Mother argues that DCS failed to prove that there was a
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reasonable probability that the conditions that resulted in Child’s removal or the
reasons for placement outside of the home would not be remedied because,
over the five months since DCS terminated her services, she has completed a
drug treatment program and had multiple clean drug screens. Mother also
asserts that DCS failed to present clear and convincing evidence that the
continuation of the parent-child relationship posed a threat to the well-being of
Child because evidence showed that she had combatted her drug issues, had
stable housing, had gotten a vehicle, and was in the process of obtaining
employment. Mother additionally claims that termination was not in the best
interests of Child because the evidence of Mother’s progress and the strong
presumption that a child should be with her natural parent show that Child’s
best interests are to be in the care of Mother.
[25] Initially, we note that Mother has not challenged any of the juvenile court’s
findings of fact as being clearly erroneous. We, therefore, “must accept these
findings as true.” In re S.S., 120 N.E.3d 605, 610 (Ind. Ct. App. 2019). Because
the unchallenged findings stand as proven, all we need do is determine whether
the unchallenged findings support the judgment, and if they do, we must affirm.
Id. at 611.
Remediation of Conditions
[26] In determining whether there is a reasonable probability that the conditions that
led to a child’s removal and continued placement outside the home would 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
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conditions led to the child’s placement and retention in foster care, and, second,
we 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.
[27] Here, the conditions that led to Child’s removal from Mother’s care were that,
on September 5, 2017, Mother and Father were arrested based on allegations of
domestic violence and substance abuse by the parents, and these arrests left
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Child without a caregiver. Child was adjudicated a CHINS based on the need
for a “safe, stable home environment that is free from substance abuse.” DCS
Ex. 4 at 12. At the time of Child’s removal, illegal drugs were found in the car,
and Mother was charged with Level 6 felony possession of methamphetamine
and Class A misdemeanor possession of a controlled substance. DCS Ex. 3 at 9;
Tr. Vol. 2 at 12-13. The DCS FCM that removed Child asked Mother if she
would be willing to submit to a drug screen. Mother declined, and she
informed the FCM that she had recently been in drug treatment but had
relapsed approximately three days before. DCS Ex. 3 at 10; Tr. Vol. 2 at 9.
[28] Throughout the proceedings, Mother continued to struggle with substance
abuse. Although she had completed a drug treatment program prior to the
CHINS case being filed, she relapsed and was arrested for possessing illegal
drugs. After her arrest, Mother was released on pretrial supervision and
ordered to begin drug treatment. Tr. Vol. 2 at 19. However, DCS was unable to
locate Mother from about November 2, 2017 to December 7, 2017, and it was
eventually discovered that she had been arrested for violating her pretrial
release, for among other things, testing positive for methamphetamine. DCS
Ex. 16. Shortly after DCS located Mother in jail, FCM Young went to the jail
and offered Mother a drug screen. Mother refused and said that she wanted “to
wait to do a drug screen until it would be clear.” Tr. Vol. 2 at 25. In January
2018, Mother began substance abuse treatment and completed a substance
abuse assessment and was recommended for individual and group classes. Id.
at 29. Mother completed her treatment in May 2018 and maintained her
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sobriety until December 2018, when she relapsed and tested positive for
methamphetamine, oxycodone, and THC. Id. at 52. In early December 2018,
FCM Young set up a meeting with Mother, and when Mother came to the
office, she was visibly impaired and “could barely write her name on the drug
screen.” Id. at 53. She tested positive for oxycodone, and after that positive
screen, Mother tested positive for both methamphetamine and THC. Id.
[29] Further evidence was presented that, although Mother was compliant with
services and visitation with Child for a period of time in the duration of the
case, she was not able to remain consistent in her compliance. Although
compliant with services for several months in 2018, Mother failed to show up to
a meeting with DCS on June 29, 2018, to discuss future visitation plans. Id. at
36. After this failure to show up for the meeting, Mother’s compliance with
services was off and on, and she cancelled visitations with Child and
appointments with her service providers because she was trying “figure out
what life would be like . . . as a single parent.” Id. at 45. Throughout July
2018, she was not “super compliant in her services,” and in August, after
moving to another town, she left her employment to search for a job closer to
where she was living and remained unemployed for the duration of the
proceedings. Id. at 46-47, 142. Between August 2018 and December 2018,
Mother’s progress continued to falter, and she cancelled or failed to appear at
several appointments with her service provider and several visitations with
Child. Id. at 48.
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[30] Additionally, Mother had anger management issues and would become angry
and “would call and cuss out [the] service providers or cuss them out in person”
when they were late to drive Mother to visitations by as little as five to ten
minutes. Id. Although ordered to do so, Mother failed to complete any
services for anger management. Id. at 159-60. Mother also became angry in
front of Child and would also raise her voice if she became agitated during
visitation, which was a particular problem because Child had been diagnosed
with PTSD with dissociative symptoms, and her triggers are loud sounds. Id. at
50, 98-99, 101. Further, during visitations, Mother also had difficulty in
providing nutritious meals for Child although she had been provided
educational tools on nutrition for Child. Id. at 85.
[31] Evidence was also presented that Mother was not able to obtain stable housing
or employment throughout the proceedings even with help from the service
providers. Id. at 74-75. When she was with Father, they lived in several
different motels, and Mother lived with her grandmother occasionally and with
her family friend for a period of time, but after she moved out of that home, she
would not provide an address to DCS. Id. at 52. When services first began,
Mother had no employment, and although she had worked two or three factory
jobs and cleaned houses, at the time of the hearing Mother was not employed
and had not had employment since August 2018. Id. at 75-76, 142. Based on
the evidence presented, we conclude that the juvenile court’s conclusion that
Mother would not remedy the conditions that resulted in removal was
supported by clear and convincing evidence.
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[32] Mother argues that the evidence did not support the conclusion that the
conditions that resulted in removal would not be remedied because the juvenile
court should have looked at her situation at the time of the termination hearing
when she had voluntarily completed drug treatment and was maintaining her
sobriety. Although the juvenile court must consider a parent’s fitness as of the
day of the termination hearing, it is within the discretion of the trial court to
“disregard the efforts [a parent] made only shortly before termination and to
weigh more heavily [the parent’s] history of conduct prior to those efforts.”
K.T.K., 989 N.E.2d at 1234. The juvenile court concluded that “Mother[’s] . . .
substance abuse has not been remedied and renders [Mother] unable to safely
provide care for the Child.” Appellant’s App. Vol. II at 66. Mother’s arguments
are a request to reweigh the evidence, which we will not do. In re H.L., 915
N.E.2d at 149. The juvenile court was free to discredit Mother’s testimony
about her recent completion of a drug treatment program in light of her past
failures at maintaining her sobriety, and we do not judge witness credibility. Id.
The juvenile court’s determination that the conditions that resulted in removal
would not be remedied was not clearly erroneous.3
3
Mother also challenges the juvenile court’s conclusion that there was a reasonable probability that the
continuation of the parent-child relationship posed a threat to Child’s well-being. However, we do not have
to address the issue 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. v. Ind.
Dep’t Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.
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Best Interests
[33] 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.
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 interest 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.
[34] Looking at the totality of the evidence, it was shown that Child had been
removed from Mother’s care for over twenty months and had been diagnosed
with PTSD with dissociative features. Child’s triggers are loud noises, and she
was very fearful of loud voices “because she is a child of a domestic violence
relationship, and she really struggles with raised voices.” Tr. Vol. 2 at 50. 98-99,
101. Child required a safe, nurturing, consistent, and predictable environment.
At the time of the hearing, Child no longer displayed aggression, had reduced
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separation anxiety, and was making progress in her communication. Id. at 99-
100. In order to make further progress, Child needed stability in housing and
caregiving, something Mother had been unable to provide, due to her inability
to maintain sobriety, provide a stable home free of domestic abuse, or address
her anger issues.
[35] A trial 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, although Child had been removed for close to two
years, 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. Additionally, the
CASA and FCM Young both testified that they believed termination of
Mother’s parental rights would be in Child’s best interests. Tr. Vol. 2 at 56;
CASA Ex. 1 at 96. FCM Young testified that, “Mother . . . had not shown that
[she was] able to meet the needs of the child. [She hasn’t] shown stability or
sobriety. [Mother] hasn’t communicated with DCS about stability in her
income, stability in her housing. She hasn’t shown improvement in her anger
management.” Tr. Vol. 2 at 56. Based on the totality of the evidence, we
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conclude that the evidence supported the juvenile court’s determination that
termination of Mother’s parental rights was in Child’s best interests. Mother’s
arguments to the contrary are a request for this court to reweigh the evidence,
which we cannot do. In re H.L., 915 N.E.2d at 149.
[36] 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.
[37] Affirmed.
Bailey, J., and Mathias, J., concur.
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