In the Termination of Parent-Child Relationship of: J.I. & K.I. (Minor Children) and B.W. (Mother) v. The 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 30 2020, 9:06 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Helen L. Newman Curtis T. Hill, Jr.
J. Everett Newman III Attorney General of Indiana
Albion, Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of Parent- January 30, 2020
Child Relationship of: Court of Appeals Case No.
19A-JT-1773
J.I. & K.I. (Minor Children)
Appeal from the
and Kosciusko Superior Court
B.W. (Mother), The Honorable
Appellant-Respondent, David C. Cates, Judge
Trial Court Cause Nos.
v. 43D01-1901-JT-20, 43D01-1901-
JT-21
The Indiana Department of
Child Services,
Appellee-Petitioner.
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1773 | January 30, 2020 Page 1 of 22
Case Summary
[1] B.W. (Mother) appeals from the involuntary termination of her parental rights
to her two minor children, J.I. and K.I. (collectively, the Children). She
challenges the sufficiency of the evidence supporting the termination order. 1
[2] We affirm.
Facts & Procedural History
[3] Mother and B.I. (Father) are the biological parents of brothers J.I. and K.I.
born in 2009 and 2013, respectively. On February 7, 2017, DCS received a
report of neglect of the Children, who were residing with Mother, stating that
Mother was using illegal drugs, had outstanding arrest warrants, and had left
the Children with a friend stating that she “was not sure” how long she would
be gone. Appellant’s Appendix Vol. II at 198. J.I. had told the reporting source
that Mother was smoking a white substance in a glass pipe “every day,” and
Mother punches the Children when she gets mad. Id. at 72.
[4] The Children were placed with Father, but he returned them to Mother’s home
on February 12. After receiving a call that the Children were back with
Mother, DCS, on February 13, visited Mother’s home, along with a law
enforcement officer due to the outstanding warrants. J.I. told DCS that Mother
kept a glass smoking device and “whitish-orange powder” in a bag in her
1
Father’s parental rights also were terminated but he does not participate in this appeal. Accordingly, we
will focus on the facts related to Mother.
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bedroom. Id. at 199. DCS asked to drug screen Mother and she refused.
Mother was arrested, and the Children were removed to protective custody.
The next day, DCS filed a Child in Need of Services (CHINS) petition. In
March 2017, the court appointed CASA Brian Erne.
[5] The Children returned to reside with Father, but, on April 25, 2017, DCS
removed them from Father “due to the lack of stability and safety for the
[C]hildren,” including concerns of drug use and or dealing. Id. After removal
from Father’s care in April 2017, the Children were placed with Jerry and
Linda Lowery (the Lowerys), 2 where they remained until July 3, 2018.
[6] On May 24, 2017, Mother admitted that she was unable to provide the Children
with care or supervision due to her incarceration after pleading guilty to
disorderly conduct and theft, and the court adjudicated them CHINS.
Following a June 27, 2017 hearing, the trial court issued a dispositional order
on July 17 that required Mother, among other things, to enroll and participate
in program(s) recommended by DCS, keep appointments, not use any illegal
controlled substances, complete a parenting assessment and a substance abuse
assessment and associated recommendations, maintain housing and a source of
income, and submit to random drug screens. Placement of the Children
continued with DCS.
2
The record reflects that the Lowerys were, or at one time had been, neighbors to Mother and had previously
provided care to the Children at various times. Appellant’s Brief at 6; Appellant’s Appendix Vol. II at 141.
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[7] On August 27, 2017, Mother was released from incarceration. After her
release, Mother was “transient” and, by September 28, 2017, had not obtained
a job, was “a no-show” at two visits, had not complied with required
assessments, and “continues to expect special accommodations to be made for
her” with regard to visitation. Id. at 143. The Children were in compliance
with services and were reported as “thriving in their placement” and “doing
well in their educational pursuits.” Id.
[8] Several months later, on November 29, 2017, CASA Erne submitted a report
indicating that Mother had not completed a parenting assessment or substance
abuse assessment, not kept appointments with him, DCS, or the Bowen Center.
Mother visited with Children on the day of her release and had been ordered to
have supervised visits with them every other week, but failed to attend “any of
these visitations and they have now been suspended.” Id. at 140. CASA Erne
reported that Mother had “done nothing to fulfill [her] dispositional
obligations.” Id. at 141. CASA Erne also reported having met with the
Lowerys on several occasions. He observed that the Children appeared
comfortable and happy in the home and had shown improvement in their
emotional well-being. J.I.’s teachers commented that his attitude was more
positive since being with Lowerys.
[9] On February 19, 2018, the court issued an order finding that “Mother has
participated in some services, but has not fully engaged in those services or
complied with all the resulting services and/or recommendations.” Id. at 134-
35. The Children were still in placement and “progressing well.” Id. at 134.
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[10] On June 27, 2018, Mother filed a Motion for a Trial Home Visit (THV). One
month later, DCS by Family Case Manager (FCM) Jeffrey Bryant filed a
progress report. FCM Bryant stated that on July 3, when he explained to the
Lowerys that DCS had a responsibility to work toward reunification with
Mother, Mrs. Lowery expressed frustration with the system and an inability to
continue with DCS if the Children would be “inevitably” returned to Mother,
who the Lowerys believed “did not have the ability to be a good mother.” Id. at
126. Thereafter, FCM Bryant transported the Children to a licensed foster
residence. FCM Bryant reported that the Children were happy in the new
placement with the exception of dealing with the emotional trauma of another
removal in less than two years. FCM Bryant also reported that “[w]hile there
was a significant delay in her beginning services, [Mother] has been fully
compliant in the last couple months, and has made important strides.” Id. at
128. He stated that although DCS did not at that time have any safety
concerns, “[t]here are some concerns of long-term stability and well-being” of
the Children, but that DCS believed “these concerns can be alleviated through
home-based services during the course of a Trial Home Visit.” Id.
[11] On August 3, 2018, CASA Erne reported that the Children were having twice-
weekly supervised visits with Mother in preparation for the THV. Mother
advised CASA Erne that she had obtained an assessment at Bowen Center but
did not engage in services there because she felt uncomfortable with the group
leader and instead sought services on her own through a different program.
CASA Erne reported that Mother had obtained appropriate housing and that
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she was not employed but was receiving disability income. Mother was
attending individual counseling sessions and had begun receiving
Homebuilders’ services in mid-July 2018. CASA Erne believed that a six-
month THV would be appropriate so long as “continued services through
Bowen and Lifeline such as Homebuilder’s and [Family Centered Treatment]”
were in place. Id. at 120.
[12] On August 6, 2018, the trial court issued an order on periodic review, finding
that Mother “has been working towards completing services on a consistent
basis,” has visited the children, cooperated with DCS, enhanced her ability to
fulfill her parental obligations, and “the cause of the out-of-home placement or
supervision has been alleviated.” Id. at 113-114. The court granted the request
for THV “subject to the requirement that [Mother] complete Intensive Home-
Based services, as recommended by DCS and its providers[,]” and the Children
were placed with Mother. Id. at 114.
[13] Mother submitted to a drug screen on October 9 and it was negative. At a team
meeting on October 31, 2018, Mother refused to screen. She submitted to a
screen on November 8, which was found positive for methamphetamine. On
November 13, 2018, DCS filed a request to end the THV and take the Children
into custody stating it was in their best interest to remove them from Mother’s
home environment. In support, DCS submitted the affidavit of FCM Rachel
Merriman who averred that (1) Mother was noncompliant with home-based
therapy which was cancelled by the provider, (2) DCS had received reports with
concerns of drug use by Mother, (3) Mother refused screens on September 25
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and November 13, had a negative screen on October 9, and a failed screen on
November 8.
[14] The next day, CASA Erne filed a report stating that, in the fall of 2018 and
since being placed with Mother, J.I. had experienced multiple behavioral
problems, was disruptive in class, showed aggression to other students, and
failed to follow teacher instruction. The school counselor, Cindy Brady,
expressed concern with “the decline in [J.I.]’s emotional well being since the
last school year.” Id. at 102. K.I., who was then in kindergarten, had exhibited
behavior problems in school and on the bus and interfered with other children
in and out of the classroom. While visiting with the Children, CASA Erne had
observed a change in their demeanor during the period of the THV, describing
J.I. as distant and depressed and K.I. looking unhappy and distracted. K.I.
would lose his temper easily. CASA Erne found the change in attitude and
behavior to be “marked and disturbing.” Id. at 103.
[15] CASA Erne stated that when THV began, the family had been ordered to
participate in Family Centered Treatment (FCT), intensive in-home family
therapy, through Lifeline, but in mid-September Lifeline reported that there had
been missed appointments and no progress, and when cancellations continued,
Lifeline discontinued FCT. J.I. was receiving individual therapy from Bowen
once per week, which increased to twice per week. K.I. had not been ordered
to receive individual services, but when CASA Erne suggested it, Mother
expressed disapproval, stating that her negative feelings toward therapy
stemmed from her having personally received services and “they didn’t do . . .
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any good.” Id. at 103. Eventually, Mother agreed that K.I. could begin with
services with Bowen twice per week.
[16] CASA Erne noted that during his visits, Mother would stay in her room, say
she was not feeling well, or send the boys fishing with him. Mother expressed
to CASA Erne in October 2018 that she did not find anything wrong with the
boys’ behavior, expressed her belief that everyone was against her, and that she
wanted to move out of state. CASA Erne opined that Mother “has been
unwilling to accept the help being offered to her boys and herself” and “has
demonstrated a consistent lack of engagement[.]” Id. at 107. CASA Erne
believed that having the Children “continuing to live in [Mother]’s care is
unsafe and poses a substantial risk to their physical and emotional health” and
for these reasons, his opinion was that it was in the Children’s best interest to
terminate the THV. Id. The Children were removed from Mother’s care “due
to noncompliance with the court orders of individual and family based therapy
and a positive drug screen for methamphetamine,” and placed with foster
parents. Id. at 72-73.
[17] On January 16, 2019, DCS filed a petition for termination of parental rights. In
a February 1, 2019 permanency report, FCM Merriman stated that Mother had
obtained secure housing, was not working but was receiving disability
payments, had complied with some visits but had missed or canceled others,
and had completed a mental health and substance abuse assessment on January
21, 2019, which recommended individual therapy and a parenting skills
assessment. DCS had requested Mother to call in daily for screens, and Mother
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started calling for two weeks, but stopped. DCS arranged a drug screen service
to do the screens at Mother’s home, and she was tested and passed several
screens, but “that service was canceled due to noncompliance.” Id. at 76.
FMC Merriman opined that Mother had been “semi-compliant during this
review period” but that she “is not in compliance” with the dispositional order
and “has not enhanced [her] ability to fulfill [her] parental obligations.” Id. at
76. FMC Merriman noted in the report that the staff at the Children’s school
had “noticed a . . . change in behavior now that the boys have left THV and
returned to foster care” such that they “are performing better in all areas
behavior and educationally” and describing them as “happy, healthy and
active.” Id. at 73. The report indicated that DCS had been in contact with the
Lowerys who stated that if termination of parental rights would occur, they
would be “more tha[n] willing to take the boys back.” Id. at 72.
[18] On February 8, 2019, CASA Erne filed a report, stating that when THV was
terminated in November 2018, the school noticed improvements in the
Children’s behavior and attitude. Brady, the school counselor, was “adamant”
that the decline of the boys’ emotional well-being and school performance was
mother’s influence. Id. at 68. CASA Erne stated that Mother did not
participate in services in October, November, or December 2018. She was
reassessed on January 21, 2019, as ordered, but had not started services or
counseling as recommended. Mother had been directed to call in daily for
random drug screens through Redwood Toxicology who agreed to come to
Mother’s residence to administer the screens; Redwood made six attempts
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between November 30, 2018 and January 3, 2019; Mother was not at home on
three occasions and she refused on three occasions, and Redwood suspended
services.
[19] CASA Erne reported that Mother was to have once-a-week supervised visits
after the THV ended, but she was “often late” and would become frustrated
with the Children’s behavior and sometimes call them names. Id. at 66. The
foster parents reported to the CASA that they observed a regression in
behaviors following the Children’s visits with Mother, and they requested that
the visits be reduced. CASA Erne stated in his report that the Children were
more stable and happy out of Mother’s care, and he believed “it is time” to
terminate Mother’s rights. Id at 68.
[20] On February 27, DCS filed an addendum to the permanency report, advising
the court that, during February 2019, Mother attended half of her scheduled
visits and did not call to cancel missed visits, and while the boys interact well
with Mother when she comes, they “are not surprised when mom does not
show up.” Id. at 61. With regard to Mother’s recommended therapy, Mother
had missed all individual therapy sessions. Mother had a positive
methamphetamine screen on February 12, 2019, when she overdosed on
antidepressants and was taken to the hospital. Thereafter, Mother was an
inpatient at Bowen February 15-18, and, after her release, she missed visits with
Children without explanation. Mother refused to share the medical records
with DCS telling FCM Merriman that the records were “none of [her]
business.” Id. at 63.
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[21] The trial court held factfinding hearings, which began and were continued due
to time constraints, on April 15, June 10, and June 26, 2019. DCS presented
the testimony of, among others, DCS supervisor Lindsay Castro, FCM
Merriman, CASA Erne, DCS service manager at the Bowen Center Conner
Gannon, Mrs. Lowery, and a foster parent with whom the Children were
placed after THV. FCM Merriman’s testimony included her opinion that
Mother had not remedied the reasons for the Children’s removal and that
termination was in the Children’s best interests. CASA Erne testified that he
believed it was “detrimental” to the Children to be in Mother’s presence, and he
recommended termination of parental rights and adoption by the Lowerys.
Transcript at 155. Mrs. Lowery stated that if termination was granted, she and
her husband wanted to adopt the Children.
[22] Mother testified to steps she had taken on her own accord, such as starting to
attend a program in the spring 2019 called Clean Slate, which required drug
screens and individual therapy, in order to address her growing dependency on
Oxycontin that Mother was taking for pain associated with liver failure. She
testified to being very uncomfortable with Bowen Center visitation facilitator,
Jessica Wilson, due in part to J.I.’s animosity toward Wilson, and her requests
to Bowen for a different facilitator.
[23] Mother and DCS both presented testimony of Rebecca Shaffer, a clinical social
worker at the Bowen Center. Shaffer testified that she conducted a court-
ordered parenting assessment of Mother in January 2019, and she diagnosed
Mother with amphetamine use disorder and issues with impulse control. She
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also testified that in May 2019 Mother had provided her with a binder of past
medical history which indicated that Mother had an IQ of 73 and previously
had been diagnosed with panic attacks and agoraphobia. Mother also had trust
issues stemming from trauma in her own childhood. Shaffer testified that
Mother began attending individual therapy sessions in February 2019 and that,
after some no-shows in February and March, Mother started attending
consistently and that, as of June 2019, Mother had attended 12-14 sessions and
had also completed a parenting questionnaire in June 2019. Shaffer
acknowledged that the questionnaire was not the equivalent of a parenting
assessment.
[24] On July 19, 2019, the trial court issued an order terminating Mother’s parental
rights. The detailed and lengthy Order included the following determinations:
Throughout the entirety of this case, Mother has displayed a
habitual pattern of a lack of compliance with Court ordered
services, complete resistance to DCS involvement, and failure to
show benefit from the services she has participated in.
***
[W]hile Mother [] participated in some services, she ha[s] not
fully engaged nor followed all services or recommendations.
***
Prior to the commencement of the Trial Home Visit,
Homebuilder’s service was in place to prepare Mother and the
Children for reunification[.] . . . Homebuilders was in the home
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for approximately fifty-two days and a total of fifty-five hours.
Homebuilders was the only service Mother has completed in the
over two years of DCS involvement. However, at the conclusion
of Homebuilder’s service, the service provider recommended the
continuation of case management, engagement with family
centered therapy, individual therapy, and therapy with the
children.
Family Centered Therapy began in the home on September 7,
2018. Mother informed the service provider she did not need
therapy and only identified that she needed help with financial
assistance. The Court credits the testimony of Kendra Howard,
the home based therapist, that Mother was not open to additional
services, did not want services, and Mother stated she did not
need services. . . . The service provider was accommodating to
Mother and permitted six to seven “no call-no shows” prior to
canceling the service, despite their policy of permitting only-
three “no call-no shows”; [a]ppointments were cancelled for a
variety of reasons, inc1uding not wanting to meet, not wanting
services at all, and not being home at the scheduled time of the
meeting. The service was ultimately cancelled on October 24,
2018.
Id. at 17-18. The court continued with findings concerning Mother’s refused,
failed, and passed drug screens, stating that “from January [2019] to June 10,
2019, Mother completed six of the thirty-two screens that should have been
completed.” Id. at 20.
[25] The court also discussed Mother’s continued “resistance to services” after the
THV, including her failure to attend the required number of individual therapy
sessions “despite multiple attempts by FCM Merriman, Bowen Case Manager
Conner Cannon, and Mother’s therapist Rebecca Shaffer, to engage Mother in
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services, reminder of appointments, and moving service times to accommodate
Mother’s needs.” Id. at 18. The court recognized that, since April 15, 2019,
Mother had completed nine individual therapy sessions with Shaffer, and that
Mother had provided Shaffer with a binder of information of IQ and past
diagnoses, but that “Mother failed to provide this information [to DCS] in the
two years of the case prior to termination proceedings.” Id. at 19. The court
found Mother’s testimony regarding “lack of memory or understanding as self-
serving and selective.” Id. The court noted that visitation went from twice a
week after the THV to once a week due to Mother’s non-compliance in services
and missed visitations. It determined that “[o]nly after the commencement of
the Termination trial has Mother minimally begun to participate” and that
“progress had not been made and was not likely in the areas of substance abuse
and anger management.” Appellee’s Appendix at 12. The order indicated that
“the former placement where the children were placed for fourteen months
prior to the [THV] intends to adopt the [C]hildren”, that being the Lowerys,
and that both the FCM and CASA Erne stated that the Children thrived while
in that placement. Id. at 13. The court granted DCS’s petition to terminate
Mother’s parental rights, and she now appeals.
Discussion & Decision
[26] When reviewing the termination of parental rights, we consider the evidence in
the light most favorable to the prevailing party, and we will not reweigh the
evidence or judge the credibility of the witnesses. Matter of M.I., 127 N.E.3d
1168, 1170 (Ind. 2019). To prevail, the challenging party must show that the
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court’s decision is contrary to law, meaning that the probative evidence and
reasonable inferences point unerringly to the opposite conclusion. Id. “Because
a 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.” In re E.M., 4 N.E.3d 636, 640
(Ind. 2014).
[27] It is well recognized that a parent’s interest in the care, custody, and control of
his or her children is ‘perhaps the oldest of the fundamental liberty interests. In
re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quotations omitted). Although parental
rights are of constitutional dimension, the law provides for the termination of
these rights when parents are unable or unwilling to meet their parental
responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008). In
addition, a court must subordinate the interests of the parents to those of the
child when evaluating the circumstances surrounding the termination. In re
K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating
parental rights is not to punish the parents, but to protect their children. Id.
Due Process
[28] In challenging the trial court’s findings and conclusions, Mother asserts that the
trial court violated her due process rights when it “adopted the entirety of
DCS’s proposed termination order and findings of fact without any significant
alteration[.]” Appellant’s Brief at 5. Our Supreme Court has recognized that
“‘[i]t is not uncommon for a trial court to enter findings that are verbatim
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reproductions of submissions by the prevailing party” and that “we do not
prohibit the practice of adopting a party’s proposed findings.’” A.F. v. Marion
Cty. Office of Family & Children, 762 N.E.2d 1244, 1249 (Ind. Ct. App. 2002)
(quoting Wrinkles v. State, 749 N.E.2d 1179, 1188 (Ind. 2001), trans. denied; see
also B.H. v. Ind. Dep’t of Child Servs., 989 N.E.2d 355, 365 n.7 (Ind. Ct. App.
2013). We note that, as Mother acknowledges, the trial court’s order in this
case contained “a few minor variations” or differences from DCS’s proposed
order, Appellant’s Brief at 7, and this reinforces our confidence that the trial court
carefully reviewed the proposed orders and delivered a considered decision.
We find no due process violation. See A.F., 762 N.E.2d at 1249 (finding that
trial court’s verbatim adoption of DCS’s proposed findings of fact and
conclusions of law was not clearly erroneous).
Sufficiency of Evidence
[29] We next address the sufficiency of the trial court’s findings and conclusions.
Before an involuntary termination of parental rights may occur in Indiana, DCS
is required to allege and prove by clear and convincing evidence, 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.
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(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[.]
Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing
evidence that termination is in the best interests of the child and that there is a
satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-
4(b)(2)(C), (D).
[30] On appeal, Mother asserts that DCS failed to present clear and convincing
evidence that the conditions resulting in the Children’s removal would not be
remedied, the continuation of the parent-child relationship poses a threat to the
Children’s well-being, termination is in the best interests of the Children, and
there is a satisfactory plan for their care and treatment following termination.
We will address each of these in turn, as needed.
a. Remedying of Conditions
[31] Mother first contends that DCS failed to present clear and convincing evidence
that there is a reasonable probability that the conditions resulting in the
Children’s removal or continued placement outside the home will not be
remedied, urging that the trial court relied “too heavily on the Mother’s early
lack of progress and too little on her close-to-success status as late as four
months before the TPR case commenced.” Appellant’s Brief at 14.
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[32] In deciding whether a reasonable probability exists that conditions will not be
remedied, the trial court must judge a parent’s fitness to care for her children at
the time of the termination hearing, taking into consideration evidence of
changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans.
denied. The court must also evaluate the parent’s habitual patterns of conduct to
determine whether there is a substantial probability of future neglect or
deprivation of the children. Id. “A pattern of unwillingness to deal with
parenting problems and to cooperate with those providing social services, in
conjunction with unchanged conditions, support a finding that there exists no
reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d
204, 210 (Ind. Ct. App. 1999), trans. denied, cert. denied (2002). 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). 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.
[33] Here, DCS was contacted in April 2017 by a source about Mother having
outstanding arrest warrants, leaving the Children with a friend without
specifying when she was coming back, and suspected drug use involving a glass
pipe and white powdery substance that Mother kept in a bag in her room. She
was arrested and incarcerated after pleading guilty to disorderly conduct and
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theft, and the Children were adjudicated CHINS. After her release, Mother did
not comply with services. The Children were thriving in their placement with
the Lowerys until July 2018 when they were removed after the Lowerys
decided that their personal beliefs were not consistent with DCS’s required
reunification efforts with Mother. Mother requested and DCS agreed to THV
in August 2018, subject to Mother’s compliance with and participation in
therapy and services. While Mother completed the Homebuilders program, she
failed to comply with the required intensive home-based therapy, and therapy
services were terminated by the provider. DCS, CASA Erne, and school staff
noticed a marked decline in the Children’s emotional health and behaviors
while living with Mother during the THV. During that time, Mother resisted
services on the basis that she believed they were not necessary or helpful. She
refused or avoided a number of drug screens, and she tested positive for
methamphetamine in November 2018. The Children were placed with foster
parents, and CASA Erne and the school staff noticed an improvement in the
Children’s emotional health from when they were living with Mother. Mother
thereafter failed to submit to drug screens, even when DCS made arrangements
for Mother to be screened at her home. Mother overdosed in February 2019,
and was an inpatient for several days at Bowen, but she thereafter missed visits
with her Children. The visits with Children were reduced for noncompliance.
[34] Mother states that after she tested positive for methamphetamine “the whole
focus by DCS shifted” and argues that up until that time, “the focus had been
on a safe and secure home, not drug use.” Appellant’s Brief at 19. To the extent
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that she is suggesting DCS could not focus on drug use because it allegedly had
not done so prior to her positive screen, we reject that argument. Certainly,
DCS could and should respond with appropriate concern and measure to a
positive screen for methamphetamine. Further, the initial report to DCS in
April 2017 involved suspected drug use and Mother’s possession of suspected
drug paraphernalia in her room. Mother also makes the argument that the trial
court’s order “failed to address [her] compliance” with some goals or DCS-
recommended services, as well as services that she initiated on her own accord,
such as when she sought assistance through Clean Slate. Appellant’s Brief at 20.
However, we find these arguments amount to requests to reweigh evidence
which we will not do on appeal.
[35] The trial court’s determination that there is a reasonable probability that the
conditions that resulted in the removal of the Children will not be remedied is
supported by clear and convincing evidence. I.C. § 31-35-2-4(b)(2)(B) is written
in the disjunctive. Therefore, having upheld the trial court’s conclusion under
I.C. § 31-35-2-4(b)(2)(B)(i), we need not review the trial court’s determination
that continuation of the parent-child relationship would pose a threat to the
Children’s well-being.
b. Best Interests
[36] Mother also asserts that the evidence was insufficient to support the trial court’s
determination that termination was in the Children’s best interests. In making
this best-interests determination, the trial court is required to look beyond the
factors identified by DCS and consider the totality of the evidence. In re J.C.,
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994 N.E.2d 278, 290 (Ind. Ct. App. 2013). The court must subordinate the
interest of the parent to those of the children and need not wait until a child is
irreversibly harmed before terminating the parent-child relationship. McBride v.
Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App.
2003). Our Supreme Court has explained that “[p]ermanency is a central
consideration in determining the best interests of a child.” In re G.Y., 904
N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have previously held that the
recommendations of the case manager and court-appointed 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.” In re J.S., 906 N.E.2d
226, 236 (Ind. Ct. App. 2009).
[37] Here, the record reflects that the Children thrived while in the Lowerys’ care
and also did well while placed with other foster parents, but regressed and
experienced emotional and behavioral problems while in Mother’s care and
after visitations with her. CASA Erne specifically stated that it was not in the
Children’s best interests to spend time with Mother. FCM Merriman opined
that the conditions resulting in removal would not be remedied, and she and
CASA Erne both recommended termination. Under the circumstances of this
case, we conclude DCS presented sufficient evidence to show by clear and
convincing evidence that termination was in the best interests of the Children.
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c. Satisfactory Plan
[38] Mother next challenges whether there is sufficient evidence that DCS has a
satisfactory plan for the care and treatment of the Children following
termination. Here, the Children were with the Lowerys from May 2017 to July
3, 2018. CASA Erne recommended termination of parental rights and adoption
by the Lowerys, and Mrs. Lowery testified that if termination was granted, she
and her husband desired to adopt the Children. FCM Merriman testified that
DCS’s plan for the Children was “[a]doption with the Lowerys.” Transcript at
142. Mother argues that the Lowerys caused trauma or damage to the Children
by “abandon[ing]” them in July 2018 and that “[r]egardless of Mother’s
situation, the Lowerys are not a suitable placement.” Appellant’s Brief at 39, 41.
The issue is not whether the Lowerys are suitable. The issue is whether DCS
has a satisfactory plan. Our courts have held that “[the] plan need not be
detailed, so long as it offers a general sense of the direction in which the child
will be going after the parent-child relationship is terminated.” In re D.D., 804
N.E.2d at 268. DCS’s evidence satisfies this requirement.
[39] The trial court’s decision to terminate Mother’s parental rights was not contrary
to law.
[40] Judgment affirmed.
Robb, J. and Bradford, C.J., concur.
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