Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 1 of 12 

### 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 FOR A PPELLANT Cara Schaefer Wieneke Special Assistant to the State Public Defender Wieneke Law Office, LLC Brooklyn, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana
Robert J. Henke Deputy Attorney General David E. Corey Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

In re the Termination of the Parent-Child Relationship of: R.T., W.T., A.T., K.T., X.J., and A.J.,
M.C. (Mother), A

ppellan t -Respondent,

v. 

### Indiana Department of Child Services, A

ppelle e -Petitioner. September 21, 2016 Court of Appeals Case No. 90A04-1602-JT-302 Appeal from the Wells Circuit Court The Honorable Kenton W. Kiracofe, Judge Trial Court Cause No. 90C01-1507-JT-28 90C01-1507-JT-29 90C01-1507-JT-30 90C01-1507-JT-31 90C01-1507-JT-32 90C01-1507-JT-33Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 2 of 12 Vaidik, Chief Judge. 

# Case Summary

[1] M.C. (“Mother”) appeals the terminatio n of her parental rights to her six children. She argues that the evidence is insufficient to prove there is a reasonable probability that the circumst ances leading to the children’s removal will not be remedied and that termination is in the children’s best interests. Concluding that the trial co urt’s judgment terminating he r parental rights is not clearly erroneous, we affirm. 

# Facts and Procedural History

[2] In 2007, Mother began living with her then-boyfriend, A.T. (“Father”), 1 and her twin sons from a previous relationship, A.J. and X.J, born June 9, 2006. When the twins were two years old, in July 2008, Mother left the home she had been sharing with Father and was homeless. Mother voluntarily placed the twins in the care of the Indiana Department of Child Services (DCS) because she had no place to live. The two boys were placed in foster care and adjudicated children in need of services (CHINS). On Janua ry 17, 2009, A.T. was born to Mother and Father. In April, the twins were returned to Mother, and the CHINS case was closed in late June. W.T. was bo rn to Mother and Fa ther February 3,

1 Father voluntarily relinquished his parental rights to his four children and is not a party in this appeal.Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 3 of 12 2010. Mother and Father were married in November 2010 and had two more children together: R.T., born April 10, 2011, and K.T., born June 10, 2013.

[3] In early January 2014, Mo ther, Father, and the six children moved into the house of Father’s sister who had recently died. A few weeks later, DCS received a report that the children we re being neglected and that Mother and Father were using illegal drugs. The ne xt day, DCS went to the house with two deputies and a detective from the We lls County Sheriff’s Department to investigate. The house di d not have central heat—rat her, it had only space heaters in some of the rooms—and it was very cold. There was little food available to eat. The whole family was using only one of the house’s bedrooms to sleep. There was a hole in the wall of that bedroom, allowing the winter air to come inside. Sexually explicit magazin es, a rifle, broken glass, clothes, toys, and cigarette butts littered the bedroo m. Mother and Father were both disoriented, and Mother disclosed that the couple had used methamphetamine that morning. Mother later explained th at she had been using heroin regularly for two or three years, but she starte d switching to methamphetamine about two weeks before the DCS investigation.

[4] DCS met the children at paternal gr andmother’s house, where Mother and Father had taken them that morning be cause the water lines were frozen at Mother and Father’s house. The chil dren showed signs of neglect. For example, A.T., W.T., and R.T. were developmentally behind for their ages— they were not toilet trained and did not know how to use utensils. All of the children had badly chapped skin, and K.T.’s feet were also discolored, causingCourt of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 4 of 12 DCS to be concerned that she might have frostbite and to take her to a hospital to be examined. DCS removed the children and placed them in foster care that day. Three days later, the trial court held a detention hear ing and found that the children should be removed from th e home because of the unfit and unsafe conditions and because of Mother’s and Father’s methamphetamine use.

[5] DCS filed a CHINS petition for each of the children, and Mother agreed that the children were CHINS. The trial court entered a dispositional order requiring, in pertinent part:
4. The child’s mother and the child’s father shall accept and successfully complete the follo wing programs or services: a. Placement in licensed foster care;
b. Substance abuse assessment , follow-up and follow any recommendations; c. Initial clinical evaluation; d. Supervised visitation; e. Random drug screens; and
f. Home-based services.
5. The child’s mother and the chil d’s father shall cooperate with the caseworker by maintainin g weekly contact, accepting announced and unannounced home visits, providing the caseworker with verification of income and paternity, financial status, change on household composition, and by signing releases. The child’s mother and father must report changes to the above information within forty-eight (48) hours, not including weekends and holidays.Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 5 of 12 Ex. 2, at 20 p. 5-6. 2

[6] Mother did not comply with the trial cour t’s order. Mother attended the first two visits with her children in February 2014 and missed the third visit. DCS suspended visitation pending a meetin g with the family case manager and explained to Mother that the meeting wa s necessary to restart visitation, but Mother did not attend the scheduled meet ing. Mother also refused to provide DCS with current contact information. In May 2014, DCS had to request an investigator to find Mother. In June, Mo ther reported that she was living with friends, and by October, she had moved ba ck into her mother ’s home. Finally, in November, she went into treatment at Redemption House for the first time. While she was in Redemption House, DC S arranged one visitation for Mother with K.T. in January 2015. Shortly th ereafter, Mother left treatment “[t]o get high[,]” Tr. p. 99, and she moved in with friends. Mother later reported to her addictions counselor that, ar ound this time, she was trading sex for drugs. Also in January 2015, DCS filed petitions to terminate Mother’s parental rights.

[7] Mother was arrested in March 2015 and charged with Level 5 felony dealing in methamphetamine, Level 6 felony poss ession of precursors, and Class A misdemeanor possession of paraphernali a. Mother opted to enter the drugcourt program and was placed in Redemption House a second time.

2 The trial court entered a separate order for each child. All of the orders are substa ntially the same. We cite this one as representative of all six orders.Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 6 of 12 [8] On June 23, it became clear that DCS could not complete the hearing on the January termination petitions before th e 180-day statutory deadline. The trial court dismissed the January termination petitions without prejudice, and DCS filed the current petitions on July 2, 2015.

[9] The trial court held three hearings in August and Se ptember, while Mother was still living in Redemption House. In January 2016, the tria l court issued an order terminating Mother’s parental rights . Relevant to this appeal, the trial court concluded that the conditions that led to the removal of the children from the home were unlikely to be remedi ed and that termination was in the children’s best interests.

[10] Mother now appeals.


# Discussion and Decision

[11] Mother contends that there is insufficient evidence to support the trial court’s termination of her parental rights. When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. In re I.A. , 934 N.E.2d 1127, 1132 (Ind. 2010). Rather , we consider only the evidence and reasonable inferences that are most favo rable to the judgment of the juvenile

court. Id. We will not set aside the juvenile court’s judgment unless it is clearly

erroneous. Id. To determine whether a judgment terminating parental rights is clearly erroneous, we review whether the evidence clearly and convincingly supports the juvenile cour t’s findings and whether the findings clearly andCourt of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 7 of 12 convincingly support the judgment. In re V.A. , 51 N.E.3d 1140, 1143 (Ind. 2016). 3

[12] A petition to terminate parental righ ts must allege, among other things:
(B) that one (1) of the following is true: (i) There is a reasonable probabi lity 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 probabi lity 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[.]

[13] Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by clear and convincing evidence. In re I.A. , 934 N.E.2d at 1133.



## I. Reasonable Probability That the Conditions Resulting in Removal Will Not Be Remedied

[14] Mother contends that there is insufficient evidence to support the trial court’s conclusion that she was unlikely to remedy the conditions that resulted in the

3 Mother contends that two of the fa ctual findings entered by the trial court are unsupported by the record. Because neither fact affects our analysis, we do not addre ss whether there is support in the record for the trial court’s finding.Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 8 of 12 removal of the children. In determining whether the conditions that resulted in a child’s removal or placement outsid e the home will not be remedied, we engage in a two-step analysis. In re E.M. , 4 N.E.3d 636, 643 (Ind. 2014). We first identify the conditions that led to removal or placement outside the home and, second, determine whether there is a reasonable probability that those conditions will not be remedied. Id. The second step requ ires trial courts to judge a parent’s fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions, an d balancing any recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of fu ture neglect or deprivation. Id. In determining fitness, trial courts have discretion to weigh a pa rent’s prior history against efforts made only shortly before term ination, and courts may find that a parent’s past behavior is the best predictor of her future behavior. Id.

[15] Here, the children were removed becaus e of Mother’s fail ure to supply the children with adequate shelter, care, an d supervision, and because of Mother’s drug use. Mother argues that at the time of the te rmination hearing, she had been sober for six months and she “was pr epared to meet the basic needs of her children if they were retu rned to her care.” Appellant’s Br. p. 15. However, Mother’s history with drugs and strugglin g to care for her children goes back years, not months. Mother had to place the twins, A.J. and X.J., in DCS custody because she had no home in 2008. She testified that she began using prescription medication in 2010 and us ed heroin daily from approximately 2011 until 2014. When DCS interven ed in 2014, Mo ther was usingCourt of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 9 of 12 methamphetamine, living in squalor with the children, and all of the children showed signs of neglect. Mother further acknowledges that, from January 2014 until March 2015, she “demonstrated a pa ttern . . . of failing to maintain sobriety and of failing to meet th e basic needs of her children.” Id. at 14. In particular, Mother lived at seven differe nt addresses from January 2014 until she was arrested fourteen months later. After her arrest, Mother spent the remaining months before the terminatio n hearing in the Allen County Jail and Redemption House—also not locations wh ere she could care for her children. She did not complete treatme nt for her addictions befo re the first petition to terminate her parental rights, leaving the treatment facility “[t]o get high.” Tr. p. 99. At one point, she reported tradin g sex to get drugs. She refused to tell DCS where she was living. She had no co ntact with the five older children for nineteen months and no contact wi th the baby for nine months.

[16] The trial court’s conclusion that the conditions will not be remedied is consistent with Prince v. Departmen t of Child Services , 861 N.E.2d 1223 (Ind. Ct. App. 2007), which Mother atte mpts to distinguish. In Prince , we concluded that there was sufficient eviden ce to find the condition leading to removal was unlikely to be remedied because Prince made only limited efforts at treatment until it was ordered as part of her proba tion in a criminal cause, and treatment did not begin until after the termin ation petition had been filed. Id. at 1230-31. Here, we have substantially the same ci rcumstances. For more than a year, Mother made very little progress towa rd treating her addiction and reuniting with her children. Then, in March 2015 , after the first termination petitionsCourt of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 10 of 12 were filed, Mother was arrested an d charged with two felonies and a misdemeanor related to drug use and manufacture. That was when Mother opted into drug court and addressed her addiction i ssues—when her alternative was to face criminal charges—not wh en treatment would have facilitated reunification with her children.

[17] Mother is essentially askingus to reweigh the evidence , giving more weight to her recent sobriety than her past history, which we cannot do. See In re E.M. , 4 N.E.3d at 642. Based on Mother’s history and the circumstances surrounding her recent sobriety, the trial court did not abuse its discretion in determining that the circumstances that resulted in the removal of the children are unlikely to be remedied.


## II. Best Interests of the Children

[18] Mother next argues that term ination is not in the childr en’s best interests. In determining what is in a child’s best in terests, the trial court must look to the totality of the evidence. In re A.D.S. , 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In so doing, the trial court must subordinate the interests of the parent to those of the child. Id. The court need not wait until a child is irreversibly harmed before terminat ing the parent-child relationship. Id. “A parent’s historical inability to provide a suitable environmen t, along with the parent’s current inability to do the same, supports finding termination of parental rights is in the best interests of the children.” In re J.C. , 994 N.E.2d 278, 290 (Ind. Ct. App. 2013).Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 11 of 12 [19] In this case, Mother has a lengthy history of not being able to provide a suitable home environment for her children, and she spent a substantial portion of the time that her children were waiting for he r in foster care moving from place to place and using methamphetamine. Co nsequently, she remained unable to provide a suitable environment for her ch ildren at the time of the termination hearings. Beginning in 2008, A.J. an d X.J. were adjudicated CHINS because Mother could not provide ad equate shelter. That CHINS case was resolved in 2009. Mother was using drugs by 2010, and she was using heroin on a regular basis for two or three years before sw itching to methamphetamine about two weeks before the CHINS cases underlying these petitions. Throughout the majority of the CHINS proceed ings, Mother continued using methamphetamine, she moved frequently , and she had no apparent means of support. Finally, at the time of the termination hearing, twenty months after the children were removed from her ca re, Mother was living at Redemption House and, although she wa s finally sober and planning for the future, she was still without the present ability to care for her children. In contrast, DCS presented a satisfactory plan for perm anent placement of the children, where they will be cared for by parents who are familiar with the children’s special needs resulting from years of neglect.

[20] Based on Mother’s historical inability to care for the children and her inability at the time of the terminat ion hearing, the trial court did not err in concluding that it is in the children’s best interest s to terminate the parent-child relationship with Mother.Court of Appeals of Indiana | Memorandum Decision 90A04-1602-JT-302 | September 21, 2016 Page 12 of 12 [21] Affirmed.
Baker, J., and Najam, J., concur.