Court of Appeals of Indiana | Memorandum Decision 09A04

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY S FOR A PPELLANT S Mark K. Leeman Logansport, Indiana Jacob A. Ahler Rensselaer, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

In the Termination of the Parent

- Child Relationship of: A.M. (Minor Child) , And R.M. (Father) and A.T. (Mother), Appellant s -

Respondents ,
v. 

### Indiana Department of Child Services, Appellee

- Petitioner. August 10, 2017 Court of Appeals Ca se N o. 09A04

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- 70 Appeal from the Cass Circuit Court The Honorable Leo T. Burns, Jr., Judge Trial Court Cause No. 09C01

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- 1Court of Appeals of Indiana | Memorandum Decision 09A04

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### Riley, Judge STATEMENT OF THE CASE

[1] Appellants

- Respondents, A.T. (Mother) and R.M. (Father) (collectively, Parents), appeal the trial court’s Order terminating their parental rights to their minor child, A.M. (Child).

[2] We affirm.


### ISSUE

[3] Although Parents have filed separate appellate briefs, we consolidate the various issues raised and restate the sole issue as : W hether the Indiana Department of Child Services (DCS) presented clear and convincing evidence to support the termination of Parents’ parental rights.


### FACTS AND PROCEDURAL HISTORY

[4] Mothe r and Father are the biological parents of the Child, born on June 14, 2011. Father established his paternity for the Child at birth by executing a paternity affidavit. Although Parents are not married , they met in
app roximately 2006 and lived together w ith the Child in Logansport, Cass County, Indiana.

[5] In November of 2013, both Father and Mother were arrested on a plethora of charges. Specifically, Father was charged with armed robbery, a Class B felony; dealing in a Schedule I controlled substance ( i.e. , heroin) , a Class B felony; possession of a controlled substance ( i.e. , heroin) , a Class D felony;Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 3 of 24 unlawful possession of a syringe, a Class D felony; pointing a firearm, a Class D felony; neglect of a dependent ( i.e. , the Child) , a Class D felony; po ssession of marijuana, a Class A misdemeanor; possession of paraphernalia, a Class A misdemeanor; and failure to stop after accident resulting in damage to an unattended vehicle, a Class B misdemeanor. Mother was similarly charged with dealing in a Schedu le I controlled substance ( i.e. , heroin) , a Class B felony; possession of a controlled substance ( i.e. , heroin) , a Class D felony; unlawful possession of a syringe, a Class D felony; and neglect of a dependent ( i.e. , the Child) , a Class D felony. For a fe w days, the Child stayed with his maternal grandmother until Mother was released on bond. Father, however, remained incarcerated.

[6] While released on bond, o n March 5, 2014, Mother injected herself with heroin

at a friend’s home ; the two

- year - old Child was in a nearby room at the time

. Mother subsequently lost consciousness, and the friend drove her and the Child to the Logansport Police Department. From there, Mother was transported by ambulance to the emergency room at Logansport Memorial Hospital. At s ome point, Mother admitted to police officers that she had used heroin, and a drug screen revealed opiates, methamphetamine, and amphetamine in her system. Mother was admitted to the hospital , and the Cass County office of DCS was notified that Mother had overdosed in the Child’s presence. Due to Father’s incarceration and Mother’s inability to care for the Child, DCS obtained an emergency detention order and immediately took the Child into custody. DCS placed the Child in th e care of his paternal aunt and uncle. On March 7, 2014 ,Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 4 of 24 DCS filed a petition alleging the Child to be a Child in Need of Services (CHINS). On March 19, 2014, Parents admitted to the allegations in the CHINS petition, and the trial court adjudicated the Child to be a CHINS.

[7] On April 9, 2014, the trial court held a dispositional hearing . O n April 11, 2016, the trial court issued a dispositional order , directing Parents to participate in services designed to reunify them with the Child

. Specifically, the trial court ordered Parents, in part , to: contact DCS on a weekly basis; maintain safe, stable housing; secure and maintain a legal and stable source of income sufficient to support household members, including the Child; participate in home

- based casewor k services “to assist in establishing and maintaining safe housing, establish budgeting skills, implement consistent, age appropriate parenting, seek resources and supporting their efforts to become sober”; attend all visitation sessions and implement pare nting techniques learned during home

- based services; enroll in all services recommended by DCS or other service providers; complete a drug assessment and any recommended treatment to achieve sobriety; submit to random drug screens upon request of DCS or an y other service provider; refrain from possessing or consuming any alcohol or

non - prescribed controlled substances; obey the law ; and provide the Child “with a safe, secure and nurturing environment that is free from abuse and neglect and be an effective c aregiver who possesses the necessary skills, knowledge and abilities to provide the [Child] with this type of environment on a long

- term basis to provide the [Child] with permanency

. ” (Appellant

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 5 of 24 Mother’s App. Vol. II, p p. 42 , 45 ). Mother was further orde red to pay $51.00 per week in child support.

[8] With respect to Mother, e arly in the proc e edings , she did not comply with her case plan. Shortly after the Child’s removal, Mother was enrolled in home

based case services and permitted to have supervised visits with the Child. During visits, Mother had to be redirected to put her cell phone down and interact with the Child, and the Child “was distant and he was very unsure as to how to act around [Mother].” (Tr. Vol. II, p. 84). Within a matter of weeks, Mother had r epeatedly failed to appear for appointments and visitation with the Child ; thus, her services were terminated. Additionally, Mother had several positive drug screens, but she refused to participate in substa nce abuse
treatment.

[9] On April 28, 2014, the State moved to revoke Mother’s b ond because she was charged with the additional crime of theft as a Class D felony

. After spending some time in the Cass County Jail, in July of 2014, Mother was released to under go inpatient substance abuse treatment at Tara Treatment Center in Franklin, Indiana. The c ompletion of the three

- week treatment program was made a condition of Mother’s release , and she successfully complied

. On September 16 , 2014, Mother pled guilty to possession of a control led substance, a Class D felony , and neglect of a dependent, a Class D felony. Mother was sentenced to four years, with three years executed through Community Corrections and one year suspended to probation. It also appears that Mother was convicted of her felony theft charge and was sentenced to probation.Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 6 of 24 Mother was assigned to Community Corrections’ w ork release program. At this point, Mother was fully participating in her DCS case plan. She obtained a factory job at Indiana Packers in Delphi , Indiana; she maintained negative drug screens; she consistently visit ed with the Child and tried to connect with him; and she participated in therapy and completed addiction classes through Community Corrections. Yet, despite a period of sobriety, on February 27, 2015, a drug screen revealed that Mother had taken a narcotic medication that had not been prescribed. Accordingly, o n March 10, 2015, a violation of work release was filed, and Mother returned to jail. On May 5, 2015, the trial court ordered Mother to execute her previously suspended sentence , on ce again, through Comm unity Corrections

.

[10] Upon her return to Community Corrections , Mother continued her employment with Indiana Packers . Notwithstanding her ge neral compliance with her Community Corrections program , M other displayed a proclivity for disregarding the administrative rules by, for example, failing to timely pay her fees, not doing her assigned chores, and not submit ting her time cards. With
respec t to her DCS case plan, Mother passed all her drug screens and participated in services. She consistently visited the Child three times per week for three hours each visit, under supervision. Mother “always had money for meals[,] [and] [s]he brought supp lies to visits.” (Tr. Vol. II, p. 99). The visitation supervisor observed that Mother and the Child shared what “seemed like a big sister, little brother kind of relationship than more of a mom and son.” (Tr. Vol. II, p. 100). There was a lack of “cons istency with positive andCourt of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 7 of 24 negative reinforcement,” and Mother struggled with knowing how to handle the Child’s temper tantrums. (Tr. Vol. II, p. 100).

[11] A few months before Mother was set to complete her sentence, her supervision level was downgraded from w ork release to home detention. As such, Mother moved in to her parents’ home. However, shortly thereafter, on February 8, 2016, Mother submitted to a drug screen which yielded positive results for amphetamine, for which Mother did not have a prescription. Accordingly, Mother was sent back to jail for violating the terms of her work release. After her violation, Mother’s Community Corrections supervisor also discovered that

a t the end of October of 2015, Mother had reported that she was at wo rk when, in actuality, Mother had used personal time to visit her boyfriend without authorization.

[12] Following her incarceration, Mother attempted to maintain weekly phone contact with the Child , specifically during the times that the Child was visiting his maternal grandmother . However, the Child’s paternal aunt ( i.e. , his foster mother) was “not comfortable” with the phone calls due to her lack of involvement in them . (Tr. Vol. II, p. 141). The Child’s paternal aunt also requested that DCS refer the Chil d to see a therapist after the Child threw “a fit about something that was really peculiar to [her]” and other concerns about his anger. (Tr. Vol. II, p. 157). The Child’s therapist diagnosed him with “an adjustment disorder” and with “symptoms of early attachment disruption based on the history of child neglect.” (Tr. Vol. II, p. 68). Upon the therapist’s recommendation, all contact between Mother and the Child was terminated.Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 8 of 24 [13] Turning to Father, f ollowing the Child’s removal and CHINS adjudication, he did not participate in his DCS case plan due to his incarceration. On June 16, 2014, Father pled guilty to possession of a controlled substance, a Class D felony; pointing a firearm, a Class D felony; and neglect of a dependent, a Class D felony. He was sentenced to six years, with two years executed in the Indiana Department of Correction, two years executed through Cass County Community Corrections, and two years suspended to supervised probation.

[14] In October of 2014, Father was released from prison and transferred to Community Corrections to serve his sentence through the work release
program
. Father obtained factory employment . Additionally, he also had visitation with the Child , and “for a while [he] was calling [the Child] almost every day.” (Tr. V ol. II, p. 164). Because Mother was concurrently serving her Community Corrections sentence, she and Father sometimes had joint visitation with the Child. During these times, the visitation supervisor consistently “had to warn [Mother] and [Father] about touching [each other] and not paying attention to [the Child,] and I had to tell them that they couldn’t talk about their relationship during the visit and that they had to focus on parenting [the Child].” (Tr. Vol. II, p. 85). Although their relationsh ip status was unclear to Community Corrections officials, Parents were observed displaying affection and had to be warned of Community Corrections’ rules against such conduct.

[15] Community Corrections intended to enroll Father in its addiction programs after Mother had completed them (so that Parents would not interfere with eachCourt of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 9 of 24 other’s progress); however, o n January 10, 2015 , Father submitted to a random drug screen and tested positive for opiates ( morphine , heroin metabolite, and codeine). As a result, on April 6, 2015, the trial court reinstated his previously

suspended two

- year sentence , to be executed in Community Corrections on top of his existing Community Corrections sentence

. On July 3, 2015, Father was sent to Tara Treatment Center for substance ab use treatment ; he su ccessfully completed the program on July 24, 2015.

[16] Based upon the recommendation of the providers at Tara Treatment Center, Father requested to be transferred to The Progress House in Indianapolis, which is “like a half

- way house, indep endent living house.” (Tr. Vol. II, p. 121). On September 17, 2015, Father moved to The Progress House, and on October 2 , 2015, he was evicted because he failed to comply with The Progress House’s rules

— such as completing chores and other assignments

. A ccordingly, Father returned to jail. On November 10, 2015, the trial court ordered Father to be placed on home detention in the Agape House, a residential treatment facility in Indianapolis, where he would be subject to electronic monitoring but could con tinue to be employed. While in Indianapolis, Father briefly worked at a clothing store; he participated in substance abuse treatment classes and home

based services; and he visited with the Child. Father “did really well” in terms of parenting the Child. (Tr. Vol. I, p. 181). However, DCS noted concerns that it “ never saw what it would be like for [Father] to discipline [the Child]. We never got to that point to where he was with him long enough for [the Child] to misbehave or have the need for the dis cipline. That was something that [DCS]Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 10 of 24 was always concerned about is how will he handle that situation if he’s put into that situation.” (Tr. Vol. II, p. 181).

[17] On March 20, 2016, Father again violated the conditions of his Community Corrections sentence when he was evicted from the Agape House for possession of fake urine. Instead of reporting to Community Corrections, Father slept in the parking lot at Agape House for more than a week, unbeknownst to the treatment facility. On March 28, 2016, Community Corrections was notified of Father’s eviction and subsequently made contact with Father. Father admitted that he did not re turn to Community Corrections over fear of the consequences, so he slept in his vehicle in the Agape House parking lot to trick his electronic monitoring equipment. Father was ordered to appear, but he did not do so for another three or four days. At that time, Father refused to submit to a drug

screen . Accordingly, Father returned to jail and was also subsequently charged with a Level 6 felony for failing to return to lawful detention.

[18] On April 18, 2016, DCS filed a petition to terminate Parents’ parental rights to the Child. On September 19 and October 5, 2016, the trial court conducted a hearing on DCS’ petition to terminate Parents’ parental rights. At the time of the termination hearings, Father was incarcerated, and Mother transitioned from incarceration to work release and living in a residential facility. The Child remained in his relative placement and was thriving; hi s paternal aunt and uncle intend to adopt him. On December 13 , 2016, the trial court issued its Order, terminating Parents’ parental rights. The trial court concluded, in pertinent part, that there is a reasonable probability that the conditions resultin gCourt of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 11 of 24 in the Child’s removal and continued placement out of Parents’ custody will not be remedied; there is a reasonable probability that the continuation of the parent

- child relationship poses a threat to the Child’s well

- being; and termination of Parents’ ri ghts is in the Child’s best interests.

[19] Parents now appeal. Additional facts will be provided as necessary.


### DISCUSSION AND DECISION
I. Standard of Review
[20] Parents appeal the trial court’s termination of t he i r parental rights. A parent has an “ interest in the care, custody, and control of his or her children [that] is ‘perhaps the oldest of the fundamental liberty interests.’” In re G.Y. , 904 N.E.2d 1257, 1259 (Ind. 2009) (quoting Troxel v. Granville , 530 U.S. 57, 65 (2000)). T he Fourteenth Amendment to the U nited States Constitution thus safeguard s “the traditional right of parents to establish a home and raise their children .” Id. Nevertheless, it is well established that “parental rights are not absolute and must be subordinated to the child’s intere sts when determining the proper disposition of a petition to terminate parental rights .” S.L. v. Ind. Dep’t of Child Servs. , 997 N.E.2d 1114, 1122 (Ind. Ct. App. 2013) (internal quotation marks omitted) (quoting In re I.A. , 934 N.E.2d 1127, 1132 (Ind. 201 0)). Termination of parental rights is appropriate where “parents are unable or unwilling to meet their parental responsibilities .” In re G.Y. , 904 N.E.2d at 1259

- 60. We appreciate that the termination of a parent

- child relationship is “an extreme

measu re and should only be utilized as a last resort when all other reasonableCourt of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 12 of 24 efforts to protect the integrity of the natural relationship between parent and child have failed.” K.E. v. Ind. Dep’t of Child Servs. , 39 N.E.3d 641, 646 (Ind. 2015) (internal quot ation marks omitted).

[21] Upon review of a trial court’s termination of parental rights, our court does not reweigh evidence or assess the credibility of witnesses. In re G.Y. , 904 N.E.2d at 1260. Rather, we “consider only the evidence and reasonable inferences that are most favorable to the judgment.” Id. A ddition ally, the trial court issued specific findings of fact and conclusions thereon , which requires application of th e two

- tiered standard of review set forth in Indiana Trial Rule 52(A): “[f]irst, we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment.” Id. We “shall not set aside the findings or jud gment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). A trial court has clearly erred “if the findings do not support the trial court’s conclusions or the conclusions do not support the judgment .” In re G.Y. , 904 N.E.2d at 1260 (quoting Bester v. Lake Cnty. Office of Family & Children , 839 N.E.2d 143, 147 (Ind. 2005)).

II. Termination St atute
[22] To support the termination of a parent’s rights, DCS must prove, in relevant part, that a child has been removed from the home for a certain period , and
(B) that one (1) of the following is true: (i) There is a reasonable probability that the co nditions that resulted in the child’s removal or the reasons for placementCourt of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 13 of 24 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

- b eing of the child. (iii) The child has, on two (2) separate occasions, been adjudicated a [CHINS]. (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

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- 4(b)(2). DCS is required to establish each element by clear and convincing evidence. In re G.Y. , 904 N.E.2d at 1260.

[23] On appeal, Parents do not challenge the trial court’s conclusions that the Child has been removed from their care for the requ isite time or that DCS has established a satisfactory plan for the Child’s care and treatment going forward. Rather, they contend that there is insufficient evidence to support the trial court’s conclusions that there is a reasonable probability either th at the conditions resulting in the Child’s removal and continued placement outside the home will not be remedied or that the continuation of the parent

- child relationship poses a threat to the Child’s well

- being 1 and that termination is in the Child’s best interests. We address each argument in turn.

1 Indiana Code section 31

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- 4(b)(2)(B) is written in the disjunctive; thus, DCS need only prove one of the three elements listed. See In re A.K. , 924 N.E.2d 212, 220

- 21 (Ind. Ct. App. 2010), trans. dismissed . In this case, DCS did not allege that the Ch ild ha s been twice adjudicated a CHINS. Therefore, the relevant inquiry is whether DCS established the existence of a reasonable probability either that the conditions resulting in the Child’s removal or continued placement outside the home will not be re medied or that the continuation of the parent

- child relationship poses a threat to the Child’s well

- being.Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 14 of 24 A. Remediation of Conditions
[24] In considering whether there is a reasonable probability that conditions will not be remedied, we must identify what conditions led to the Child’s “placement and retention” outside of the home and then determine whether there is a reasonable probability that those condi tions will not be remedied. K.T.K. v. Ind. Dep’t of Child Servs. , 989 N.E.2d 1225, 1231 (Ind. 2013). In making these decisions, “the trial court must judge a parent’s fitness as of the time of the termination proceeding, taking into consideration evidenc e of changed conditions

— 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.” In re E.M. , 4 N.E.3d 636, 643 (Ind. 2014) (citation omitted) (internal quotation marks omitted) (quoting Bester , 839 N.E.2d at 152; K.T.K. , 989 N.E.2d at 1231). “Habitual conduct may include ‘criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment.’” K.E. , 39 N.E.3d at 647. DCS “is not required to provide evidence ruling out all possibilities of change; rather, it need only establish that there is a reasonable probability that the parent’s behavior will not change.” A.D.S. v. Ind. Dep’ t of Child Servs. , 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013) (internal quotation marks omitted), trans. denied

.

[25] According to Mother, the evidence does not support a conclusion that there is a reasonable probability that the conditions resulting in the Chi ld’s removal and continued placement out of the home will not be remedied. WithoutCourt of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 15 of 24 specifically challenging any of the trial court’s findings, she argues that the evidence instead establishes that she “made substantial strides in improving herself while i ncarcerated.” (Appellant

- Mother’s Br. p. 29). She notes that she “became very consistent in exercising parenting time”; she “completed the program[m] ing that was available to her regarding nutrition, budgeting, and parenting. She also took several class es directed at preventing relapse and successfully completed inpatient drug treatment at TARA.” (Appellant

Mother’s Br. p. 29). Furthermore, her “release from incarceration was imminent,” and she was presently employed through work release with plans for employment and housing after her release. (Appellant

- Mother’s Br. p. 29). Mother further claims that she “had a good sense of what program [m] ing and support network she needed from her family to prevent relapse once released from incarceration.” (Appel lant

- Mother’s Br. p. 29). Mother also states that she “only had two positive drug screens and a violation for not reporting a visit with a boyfriend” in a two

- year span. (Appellant

- Mother’s Br. p. 29). Finally, Mother points out that, despite the patern al aunt’s attempts to thwart her relationship with the Child, Mother endeavored to maintain contact with him.

[26] Similarly, a lthough he frames it as a challenge to whether the proper evidentiary standard was applied, Father asserts that
[b] y the time this c ase reached the termination hearing, . . . Father made it clear to the [c]ourt that he had been compliant in the services he could do while incarcerated, that he had only one failed drug screen in over two years, that he was bonded with [the Child], and th at he had employment opportunities awaiting him when he was released from jail. Simply, there was noCourt of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 16 of 24 prejudice to the State or [the Child] by allowing Father to have the opportunity to continue his services so that reu nification could be achieved.
(Appell ant

- Father’s Br. p. 13). 2 Father insists that the present case is analog o us
to In re J.M. , 908 N.E.2d 191 , 194

- 96 (Ind. 2009), wherein our supreme court determined that termination of a parent’s rights was inappropriate b e cause the parents, who were both incarcerated , expected to be released soon; parents had engaged in the services required of them while incarcerated; the parents had an established relationship with the child; and the mother had completed her bachelor’s degree and the father had employmen t and housing lined up for the family such that their “ability to establish a stable and appropriate life upon release can be observed and determined within a relatively quick period of time.”

[27] Parents’ arguments largely amount to a request to reweigh the e vidence, which we decline to do. See In re Termination of Parent

- Child Relationship of D.D. , 804 N.E.2d 258, 265 (Ind. Ct. App. 2004) , trans. denied

. Furthermore, we find that the evidence and the trial court’s unchallenged findings establish that this c ase is distinct from In re J.M. in that P arents failed to implement lasting changes to ensure the Child would not suffer future neglect. Here, the Child was removed

2 Father vaguely challenges the trial court’s conclusion regarding the remediation of the conditions resulting in removal , but he has not developed a separate argument regarding whether there was sufficient evidence of a reasonable probability that the continuation of the parent

- child relationship poses a threat to the Child’s well

- being. Thus, he has effectively conceded that Indiana Code section 31

- 35

- 2

- 4(b)(2)(B) was satisfied. We nevertheless elect to address his argument in conjunction with Mother’s.Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 17 of 24 after Mother overdosed on heroin while Father was incarcerated, leaving the Child without a caregiver. Father brazenly argues that “DCS became involved in this case due to . . . Mother’s overdose on heroin, not due to . . . Father’s incarceration.” (Appellant

- Father’s Br. p. 17). Father completely ignores the fact that if he had been availab le to properly care for the Child and fulfill his parental responsibilities at the time of Mother’s overdose, DCS would not have had to take the Child into emergency custody and place him with the paternal aunt and uncle.

[28] Throughout the case, Parents cycled between incarceration and supervision by Community Corrections. During their periods of work release and home detention, Parents were afforded services by DCS and an opportunity to visit with the Child. Parents were al so permitted to participate in relevant programs through the Department of Correction and/or Community Corrections. There is no dispute that Parents participated in, and even completed, several substance abuse treatments and classes and home

- based service s, and they generally did well during their fully

- supervised visits with the Child. Parents also testified that they expected to complete their sentences soon after the termination hearing , at which point, Father intended to work for his family’s business and find housing, whereas Mother hoped to return to her factory job and live with her parents.

[29] N otwithstanding the positive steps that Parents took, they failed to internalize the lessons and the ramifications of ongoing substance abuse . Parents decline d to take responsibility for their conduct and blame d others for their own poorCourt of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 18 of 24 choices . As the director of Community Corrections testified, Father and Mother habitually refuse d to learn from their past behavior. They believe that they need only “ follow t heir own rules, ” “and then when that type of behavior exists that’s, that leads to the bigger stuff. That leads to the . . . drug use, to the lying.” (Tr. Vol. II, p. 115

- 16 ). T he trial court found that Parents “have received numerous hours of substance abuse treatment and education”; yet, they “have continued to use ille g al substances an d co m mit other illegal acts.” (Appellant

- Mother’ s App. Vol. II , p. 115). Mother failed one drug screen while under supervision through work release and another drug sc reen within a few weeks of moving to her parents’ home to serve her sentence on home detention. After the Child’s removal and while out on bond, Mother was charged with a Class D felony theft, and she violated a host of Community Corrections rules. While Father may have only technically failed one drug screen, he was evicted from a halfway house for possessing fake urine, and he subsequently refused to submit to a drug screen. Like Mother, Father also refused to consistently comply with the rules of Community Corrections. Moreover, Father further risked his parent

- child relationship by committing the additional offense of failing to return to lawful detention in the midst of the CHINS proceedings. Se e Castro v. State Office of Family & Children , 842 N.E.2d 367, 374 (Ind. Ct. App. 2006) (“[I]ndividuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.”), trans . denied

.Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 19 of 24 [30] Although both Parents claimed that they were sober as of the termination hearing and indicated that they were ready to fulfill their parental duties, t he trial court clearly found a lack of credibility in their testimony

. Specifically, the trial court found that “Mother’s conscious choice to spend time with her boyfriend during hours she was supposed to be at work and subsequently lying to her corrections officer [did] not lend [the trial] court to determine that Mother is willing to put her [Chi ld’s] needs above her own wants or show an ability to address and remedy some of the underlying behaviors of lying and sneaking around that surround the use of illegal substances.” (Appellant

Mother ’s App. Vol. II , p. 115). Likewise, the trial court fou nd that Father’s excuses for failing to return to lawful detention and submit to a drug screen after being evicted from the Agape House were “incredible and unconvincing.” (Appellant

- Mother ’s App. Vol. II , p. 116).

[31] The trial court found that the Parents’ conduct throughout the case

— relapses, committing new crimes, and refusing to adhere to the conditions of Community Corrections

— negated their claims that they had made lasting changes in their lives:
[ Parents ] are both unwilling to change their behaviors ev en on the most basic of levels despite the consequences. The consequence of being denied parenting time with one’s child should be enough to promote compliance with the basic rules of [C]ommunity [C]orrections but this did not deter either parent from vio lating the rules or disregard[ing] them altogether.Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 20 of 24 (Appellant

- Mother ’s App. Vol. II, p. 116). See In re Termination of Parent

- Child Relationship of D.D. , 804 N.E.2d at 267 (relying on the parent’s “habitual pattern of conduct” as indicative of the parent ’s inability to remedy conditions). It is clear that the Child’s removal and continued placement out of the home was the direct result of Parents’ poor decision

- making and refusal to prioritize the needs of the Child

. Therefore , the trial court did not err as there is sufficient evidence of a reasonable probability that the conditions resulting in the Child’ s removal and continued placement outside the home will not be remedied. 3

B. Best Interests
[32] When considering the best interests of a child, we recognize that t he purpose of terminating a parent

- child relationsh ip is to protect the child, not to punish the parent. In re C.C. , 788 N.E.2d 847, 855 (Ind. Ct. App. 2003), trans. denied

.

“ [C] lear and convincing evidence need n ot reveal that the continued custody of the parent . . . is wholly inadequate for the child’s very survival[,] . . . it is sufficient to show . . . that the child’s emotional and physical development are threatened by the respondent parent’s custody.” K.T .K. , 989 N.E.2d at 1234

- 35 (quoting Bester , 839 N.E.2d at 148). To determine whether termination is in a child’s best interests, the trial court must “look beyond the factors identified by [DCS] and . . . look to the totality of the evidence.” A.D.S. , 98 7 N.E.2d at 1158. “[C]hildren cannot wait indefinitely for their parents to work toward

3 Based on this determination , we need not address the alternative element of Indiana Code section 31

- 35

- 2

- 4(b)(2)(B) regarding whether the continu ation of the parent

- child relationship poses a threat to the Child’s well

- being. See In re A.K. , 9 24 N.E.2d at 220

- 21

.Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 21 of 24 preservation or reunification

— and courts ‘need not wait until the child is irreversibly harmed such that the child’s physical, mental and social development is permanently impaired before terminating the parent

- child relationship.’” In re E.M. , 4 N.E.3d a t 648 (quoting K.T.K. , 989 N.E.2d at 1235). It is well established that “[p]ermanency is a central consideration in determining the [child’s] best interests.” K.T.K. , 989 N.E.2d at 1235 (alterations in original) (quoting In re G. Y. , 904 N.E.2d at 1265).

[33] Our courts have long held that “the recommendation by both the [DCS] case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and con vincing evidence that termination is in the child’s best interests.” A.D.S. , 987 N.E.2d at 1158. Here , DCS recommended that the trial court terminate Parents’ rights . DCS testified that Mother “needs a very structured environment in order to succeed,” and she has not established that she will be able to provide herself with such upon her release . (Tr. Vol. II, p. 180). Father’s pattern of conduct indicates that he “would be someone who[ ] [ is] in and out of [the Child’s] life” “due to drug use or doing something that’s not legal.” (Tr. Vol. II, p. 182). Following a hearing, Father had admitted to DCS that, while he did not want his rights terminated, he doubted his ability to care for the Child full time. T he Child’s guardian ad litem also recommende d that termination would be in the Child’s best interests

— primarily based on the substantial length of time that the Child ha s been removed without a showing of meaningful improvement by Parents. While the guardian ad litem expressedCourt of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 22 of 24 “some reluctance ” based on Parents’ limited contact with the Child and the fact that the interactions they did have were positive, the guardian ad litem acknowledged that Parents’ missed opportunities to demonstrate their parenting abilities were “entirely[ by] their own d oing by the decisions that they’ve made.” (Tr. Vol

. II, p. 195). The guardian ad litem also cited concerns that Parents would, again, relapse.

[34] Nevertheless, Parents contend that the Child’s best interests do not support termination of their parental righ ts

. Mother asserts that, even though the Child is bonded with his relative placement, “she has exercised consistent visitation on over a hundred occasions during her incarceration. Mother showed an eagerness to bond with [the Child] and the bond was obse rved repeatedly by supervisors . . . .” (Appellant

- Mother’s Br. p. 22). Mother also contends that she “availed herself of several programs” while incarcerated, her release was imminent, and she “had a plan for life after incarceration, available employme nt, a support network to prevent relapse, and available housing with her family.” (Appellant

- Mother’s Br. pp. 23

- 24). Father raises similar arguments as to why the Child’s best interests preclude termination. He contends that he made a “good

- faith measu re” to engage in substance abuse treatment and participated in other services and classes, and he visited with the Child. (Appellant

- Father’s Br. p. 14). Notwithstanding that his repeated bouts of incarceration were solely his own fault and that Father f aced pending charges at the time of the termination hearing , Father complains that he “was never given a substantial opportunity to show that he could provide for [the Child]Court of Appeals of Indiana | Memorandum Decision 09A04

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- 70 | A u g u s t 1 0 , 2 0 1 7 Page 23 of 24 and be a parent after removal” due to his confinement. (Appellant

- Father’s Br.
p . 14). Finally, Father cites his love for, and bond with, the Child.

[35] The love Parents have for the Child is not in dispute; yet, instead of doing whatever was necessary to reunite with the Child, they chose to repeatedly violate rules and forego their sob riety. The trial court ultimately found that the Child “needs caregivers who can provide him with a nurturing environment that is secure and free of abuse and neglect and meets the [C]hild’s needs.” (Appellant

- Mother’s App. Vol. II, p. 120). The trial c ourt specified that Parents “have demonstrated no ability to parent the [C]hild or to provide him with the nurturing, stable, and appropriate care and environment that he requires on a long term basis.” (Appellant

- M other’s App. Vol. II, p. 120). Evidence was presented that the Child suffers from an “Adjustment Disorder stemming from the trauma he has su ffered in his short life.” (Appellant

- Mother’s App. Vol. II, p. 120). While Parents intermittently attempted to comply with their case plans, their recur rent relapses and violations prevented them from establishing that they could care for the Child on a permanent basis going forward. Taking into account the recommendations of DCS and the guardian ad litem , along with the evidence of the Child’s progress in his relative placement and Parents’ lack of meaningful remediation over a two

- and

- one - half

- year period, we agree with the trial court’s determination that there is clear and convincing evidence that termination of Parents’ rights is in the Child’s best interests.Court of Appeals of Indiana | Memorandum Decision 09A04

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### CONCLUSION

[36] Based on th e foregoing, we conclude that the trial court did not clearly err as DCS presented sufficient evidence to support the termination of Parents’ parental rights

.

[37] Affirmed.

[38] Robb, J. and Pyle, J. concur