In re the Involuntary Termination of the Parent-Child Relationship of: J.P. (Minor Child), And S.P. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 09 2020, 9:20 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jonathan T. Feavel Curtis T. Hill, Jr. Feavel & Porter, LLP Attorney General of Indiana Vincennes, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Involuntary March 9, 2020 Termination of the Parent-Child Court of Appeals Case No. Relationship of: 19A-JT-2234 J.P. (Minor Child), Appeal from the Daviess Circuit Court And The Honorable Gregory A. Smith S.P. (Mother), Judge Appellant-Respondent, Trial Court Cause No. 14C01-1901-JT-3 v.

Indiana Department of Child Services, Appellee-Petitioner.

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Riley, Judge.

STATEMENT OF THE CASE [1] Appellant-Respondent, S.P. (Mother), appeals the trial court’s Order

terminating her parental rights to her minor child, J.P. (Child). [2] We affirm.

ISSUES [3] Mother presents the court with three issues, which we consolidate and restate as

the following two issues:

(1) Whether Mother’s due process rights were violated when the Department of Child Services (DCS) filed a petition seeking to terminate her parental rights more than six months after a child in need of services (CHINS) dispositional decree was entered; and

(2) Whether the trial court’s Order terminating Mother’s parental rights to Child was supported by the evidence.

FACTS AND PROCEDURAL HISTORY [4] Child was born to Mother and C.L. (Father)1 on June 27, 2010. In November

2015, Child was removed from Mother’s care and adjudicated a CHINS after

Mother retrieved her from daycare and drove while intoxicated. In November

1 On May 29, 2019, Father voluntarily relinquished his parental rights and consented to Child’s adoption. Father is not a party to this appeal.

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2016 after Mother’s completion of substance abuse treatment and work with a

parenting aide, Child was returned to Mother. Mother did not pursue any

substance abuse or alcohol treatment after Child was returned to her. [5] On December 8, 2017, DCS Family Case Manager Pamela Padgett (FCM

Padgett) went to Mother’s home to investigate reports that Mother was abusing

drugs, she was allowing others to use drugs in the home, she was allowing a

registered sex offender to stay in the home and spend time around Child, and

Child was not attending school regularly. Mother admitted that she was under

the influence of an illegal substance, and FCM Padgett confirmed that a

registered sex offender spent time in the home, something which did not appear

to FCM Padgett to concern Mother. Mother entered into an informal

adjustment with DCS pursuant to which Mother agreed to undergo a substance

abuse evaluation, follow treatment recommendations, and work with a

parenting aide. Mother underwent a substance abuse evaluation and was

referred to out-patient treatment at the Samaritan Center, but she did not

attend. Mother was next referred to an intensive out-patient program at

Brentwood Springs, but she was discharged for non-attendance. Mother was

prescribed an anti-depressant medication as part of her treatment at Brentwood

Springs, but she did not take it. After her discharge from Brentwood Springs,

Mother was referred again to the Samaritan Center. Mother did not engage in

services there. [6] On March 5, 2018, DCS received a report that Mother was abusing

methamphetamine, prescription medication, and alcohol. On March 6, 2018,

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FCM Jessica Rhoads (FCM Rhoads) interviewed Child at her school. Child

reported that she made her own meals, got herself up in the morning, and

readied herself for school because Mother slept a lot. Child had been late for

school or absent over the preceding days. FCM Rhoads interviewed Mother,

who admitted drug and alcohol use. Child was removed from Mother and

placed in foster care, where she has resided with the same foster parents ever

since. At the time of Child’s removal, Mother was on probation for a

conviction for domestic battery involving Father. [7] On March 8, 2018, DCS filed a verified petition alleging that Child was a

CHINS. On April 19, 2018, Mother admitted that she had mental health,

substance abuse, housing, and employment issues that rendered Child a

CHINS. On May 3, 2018, the CHINS court entered its dispositional order

directing Mother to participate in substance abuse and mental health

evaluations and to follow all treatment recommendations. Mother was also

ordered to engage in home-based case management, parenting education, and

random drug screens. [8] Mother underwent an evaluation at the Samaritan Center and was diagnosed

with alcohol dependence, methamphetamine abuse, and major depression.

Mother was referred to individual and group therapy. Mother attended one

individual therapy session but attended none of the group therapy sessions.

Mother’s services at the Samaritan Center were closed in June 2018 for

nonattendance. On June 23, 2018, Mother was arrested for residential entry

and criminal mischief after she broke into Father’s home and destroyed some of

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his property. On October 8, 2018, Mother was evaluated at LifeSprings and

was referred to individual therapy and the Matrix program to address her

substance abuse issues. Mother missed appointments and continued to use

methamphetamine and alcohol, so she was terminated from her LifeSprings

services in November 2018. Mother continued to use illegal substances through

December 2018. From March 2018 to December 2018, Mother submitted

twenty-six of the forty random drug screens requested of her. Out of the

twenty-six screens that Mother submitted, eight tested positive for

amphetamines and methamphetamine. From March 2018 to December 2018,

Mother attended eleven of her thirty-three scheduled sessions with her

parenting aide. [9] After the CHINS petition was filed, Mother moved from her apartment in

Washington, Indiana, to the home of the mother of her boyfriend, Chris Crays

(Crays). The couple then moved into a motel, where Mother worked in

exchange for a room. The couple subsequently moved to a home in Ferdinand,

Indiana. Crays had a criminal record, and in November 2016, DCS had

substantiated claims against him for child seduction and deviate sexual conduct

with a step-child. [10] In November 2017 during Mother’s informal adjustment with DCS, she was

working at a fast-food restaurant. From May 2018 to August of 2018, Mother

worked at Jasper Rubber. She was discharged from Jasper Rubber after fighting

with her superior. Late in the summer of 2018, Mother worked at the motel in

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exchange for a room, and from October 2018 to December of 2018, Mother

worked at Kimball Electronics. [11] On December 30, 2018, Mother was arrested for domestic battery with a deadly

weapon, criminal mischief, and public intoxication following an incident where

Mother stabbed Crays with a paring knife and then attempted to beat in the

door of the bathroom where Crays sought refuge. On January 4, 2019, DCS

filed a petition to terminate Mother’s parental rights to Child. On January 7,

2019, Mother was placed in a work release facility pending resolution of the

criminal case against her. [12] Mother exercised parenting time with Child during the CHINS proceedings.

Her parenting time was always supervised. Mother was advised throughout the

CHINS case that any increase in her parenting time was dependent on

submitting clean urine screens. Mother appeared for her January 19, 2019,

parenting time session with Child smelling of alcohol, prompting DCS to move

sessions from the community to a DCS facility. After Mother’s December 2018

criminal charges and placement in work release, parenting time was reduced to

once per month with Child’s therapist supervising. Mother returned to work

release on February 18, 2019, after having consumed alcohol. [13] On May 29, 2019, and July 29, 2019, the trial court held fact-finding hearings

on DCS’ petition to terminate Mother’s parental rights. As a result of pleading

guilty to violating her probation and to committing domestic battery against

Crays, Mother anticipated being eligible for home detention beginning in

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August 2019. If she was compliant with the terms of her home detention,

Mother anticipated completing all of her sentences by the end of March 2020.

Mother planned to serve her home detention in the Ferdinand apartment,

where Crays was still living and his name was on the lease. Mother maintained

that Crays would no longer be living there after her release, but she continued

to have contact with Crays and openly questioned why DCS did not approve of

her living with him. Mother felt that her criminal record and incarceration had

not negatively impacted her ability to provide a stable home and effective

parenting for Child. Mother acknowledged that when she was not incarcerated,

she failed to make consistent progress on the issues that had caused Child’s

removal. [14] Mother’s Community Corrections Case Manager, Emily Meyer (CCCM

Meyer), testified that Mother’s compliance with the demands of work release

had been “iffy” for her first three months, but that she had “really turned herself

around the last two months[.]” (Transcript Vol. II, p. 220). Mother had

started consistently attending her substance abuse treatment in mid-February

2019. Mother had also begun individual therapy and medication through

LifeSprings two or three weeks before the first TPR hearing. CCCM Meyer

acknowledged that, while Mother was compliant with work release

requirements, that could change. Mother had submitted diluted urine samples

in February and April 2019. [15] Child’s Permanency Case Manager Autumn Rhoads (PCM Rhoads), who had

been engaged with the family since March 2018, testified that she had spoken to

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Mother on numerous occasions about her continued relationship with Crays.

The relationship concerned PCM Rhoads because of Crays’ DCS history and

the domestic violence that had occurred between Mother and him. Mother told

PCM Rhoads that it was her own personal decision whether to be in a

relationship with Crays. PCM Rhoads felt that Mother was not being truthful

about not being in a relationship and living with Crays after she was discharged

from work release and that Mother was “not putting her child first.” (Tr. Vol.

III, p. 12). As recently as July 10, 2019, Mother had voiced her confusion to

PCM Rhoads about why DCS did not approve of her being with Crays. PCM

Rhoads reported that while on work release, Mother had been fired from her

job at a fast food restaurant for consuming alcohol and because Crays spent too

much time there while Mother was working. It was PCM Rhoads’ opinion that

Mother’s relationship with Crays was a barrier to moving forward to

reunification with Child. It concerned PCM Rhoads that Mother had only

shown improvement in the controlled environment of work release and that,

when she was not in a controlled environment, she was not compliant with

treatment. [16] PCM Rhoads also testified that, at the beginning of the CHINS case, Child had

not been attending school regularly, she had poor grades, and it had been

debated whether Child required an individualized education plan. When PCM

Rhoads had interviewed Child at the beginning of the case, Child did not feel

safe and reported that Mother was not feeding her. After her placement with

her foster parents, Child reported that she felt safe and that her foster parents

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“let her eat every day.” (Tr. Vol. III, p. 28). As of the second fact-finding

hearing on the termination petition, Child’s grades had improved, she did not

require an education plan, and she was making friends. Child had been in her

foster parents’ home for sixteen months, had a routine to follow, and worried

less. Child was bonded to another foster child in the home and cherished being

in a big sister role. Child wished to be adopted by her foster parents. It was

PCM Rhoads’ opinion that adoption by the foster parents was in Child’s best

interests. [17] Child’s mental health counselor testified that “stability is the number one

factor.” (Tr. Vol. III, p. 71). She recommended no change in placement for

Child. Child’s Court Appointed Special Advocate Ericka Frances (CASA

Frances) also felt that adoption was in Child’s best interests because of Mother’s

lack of demonstrated history of stability outside of a controlled environment. [18] On September 3, 2019, the trial court entered its Order terminating Mother’s

parental rights to Child. Among the 117 findings of fact and conclusions

entered by the trial court in support of its Order were the following:

20. On April 20, 2018, the [c]ourt entered its Order on Pre-Trial Conference in which the [c]ourt took under advisement Mother’s admission that [] Child is a [CHINS] due to Mother’s mental health issues, substance abuse, and housing and unemployment instability. []

21. On May 9, 2018, the [c]ourt entered its Order Adjudicating [Child] a [CHINS].

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23. On May 10, 2018, the [c]ourt entered its Dispositional Order as to Mother, in which . . . Mother was ordered to (1) maintain contact with the [FCM], (2) enroll in recommended programs, (3) submit to random drug screens, (4) refrain from the use of illicit substances, (5) find suitable housing for herself and [] Child, [6] meet with medical/psychiatric personnel, as directed by the medical/psychiatric personnel and take all prescribed medications as directed, and [7] obey the law, etc. []

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26. During the course of the underlying CHINS case, Mother was referred for individual therapy, Intensive Outpatient Treatment (IOP), random drug screens, and a parent aide service to help her obtain stable housing and employment.

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41. Mother has been the subject of multiple criminal charges during the life of the underlying CHINS case.

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56. Mother has been compliant with programs through Community Corrections since approximately [April 2019] but did not demonstrate compliance with any services prior to her most recent incarceration and did not fully begin complying with services through Community Corrections until she had been incarcerated for approximately three months.

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57. Mother herself acknowledged that her most recent bout of compliance is the most consistent she has been throughout the underlying CHINS case.

58. This [c]ourt has found that Mother has been, at best, only partially compliant in every Order on Periodic Case Review in the underlying CHINS action.

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60. While services were offered by DCS, Mother did not avail herself of the services recommended to facilitate reunification. Mother has not demonstrated an ability to provide a safe and stable home for [] Child.

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98. DCS’ plan for [] Child is to be adopted by her current placement, with whom she has been placed for approximately [sixteen] months.

99. [] Child’s needs are met in her current placement and [] Child is bonded to her foster parents.

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105. [The] CASA testified, and based on that testimony which the [c]ourt finds credible, the [c]ourt now finds:

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(e) That adoption is in [] Child’s best interest. Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020 Page 11 of 23

(Appellant’s App. Vol. II, pp. 5-9, 11-12). The trial court concluded that Child

had been removed from Mother for at least six months under a dispositional

decree; there was a reasonable probability that the conditions that resulted in

Child’s removal and continued placement outside of Mother’s care would not

be remedied; there was a reasonable probability that continuation of the parent-

child relationship posed a threat to Child’s well-being; and termination of

Mother’s parental rights was in Child’s best interests. [19] Mother now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Due Process

[20] Mother contends that her procedural due process rights were violated by the

timing of the filing of the petition to terminate her parental rights. When the

State seeks the termination of a parent-child relationship, the manner in which

it does so must comply with the requirements of the Due Process Clause. In re

H.L., 915 N.E.2d 145, 147 (Ind. Ct. App. 2009). The cornerstone of procedural

due process is that “[t]he parent must be afforded the opportunity to be heard at

a meaningful time and in a meaningful manner.” Id. [21] Indiana Code section 31-35-2-4(b) sets out the pleading requirements for a

petition seeking to terminate a parent’s rights to a minor child and provides in

relevant part as follows:

(2) The petition must allege:

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(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least (6) months under a dispositional decree.

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(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be child in need of services or a delinquent child[.]

Thus, the statute establishes “waiting periods to give parents time to reunify

with their children, and bars DCS from seeking termination until one of those .

. . periods has passed.” Matter of Bi.B., 69 N.E.3d 464, 465 (Ind. 2017). [22] Here, DCS filed its termination petition almost eight months after the CHINS

court entered its dispositional decree, and, in its petition, DCS alleged the

waiting period set forth in subsection (b)(2)(A)(i). Mother argues that her

procedural due process rights were violated because DCS could have afforded

her more time and resources by waiting to file its petition under subsection

(b)(2)(A)(iii). However, “the Due Process Clause does not empower the

judiciary to sit as a superlegislature to weigh the wisdom of legislation.” James

v. Pike Co., 759 N.E.2d 1140, 1143 (Ind. Ct. App. 2001). Here, DCS filed its

petition after one of the waiting periods created by the legislature had expired.

Mother argues that “[n]o witness testified to the necessity of filing pursuant to

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the dispositional decree option and no unique or special circumstances appear

to be present in the instant case or history[,]” although nothing in the statute

requires DCS to allege any circumstance other than that six months have

passed since the entering of a dispositional decree. (Appellant’s Br. p. 17). [23] Mother does not allege any true procedural irregularities depriving her of an

opportunity to be heard in a meaningful time and manner in this case. See In re

H.L., 915 N.E.2d at 147. In addition, Mother’s contention that due process

accorded her a right to more time for services is unpersuasive because “a failure

to provide services does not serve as a basis on which to directly attack a

termination order as contrary to law.” In re J.W., Jr., 27 N.E.3d 1185, 1190

(Ind. Ct. App. 2015), trans. denied. Accordingly, we conclude that Mother’s

procedural due process rights were not violated when DCS filed its petition over

six months after the CHINS court entered its dispositional decree, as permitted

by statute.

II. Sufficiency of the Evidence

A. Standard of Review

[24] Mother argues that the trial court’s Order terminating her parental rights was

not supported by the evidence. It is well-settled that when reviewing the

evidence supporting the termination of parental rights, we neither reweigh the

evidence nor determine the credibility of witnesses. In re E.M., 4 N.E.3d 636,

642 (Ind. 2014). In addition, we consider only the evidence that supports the

judgment and the reasonable inferences to be drawn from that evidence. Id.

“We confine our review to two steps: whether the evidence clearly and Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020 Page 14 of 23

convincingly supports the findings, and then whether the findings clearly and

convincingly support the judgment.” Id. We must give due regard to the trial

court’s opportunity to judge the credibility of witnesses firsthand, and we do not

set aside the trial court’s findings or judgment unless it is clearly erroneous. Id.

B. Termination of Mother’s Parental Rights

[25] “[O]ne of the most valued relationships in our culture” is that between a parent

and his or her child. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied.

Indeed, “[a] parent’s interest in the care, custody, and control of his or her

children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.

(quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.E.d2d 49

(2000)). Accordingly, the Fourteenth Amendment to the United States

Constitution safeguards “the traditional right of parents to establish a home and

raise their children.” Id. Nevertheless, parental interests are not absolute;

rather, termination of parental rights is appropriate when parents are unable or

unwilling to meet their parental responsibilities. In re A.B., 887 N.E.2d 158, 164

(Ind. Ct. App. 2008). [26] Termination of parental rights is an extreme sanction that is intended as a “last

resort” and is available only when all other reasonable efforts have failed. C.A.

v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 91 (Ind. Ct. App. 2014). As such,

before a termination of parental rights is merited, the State is required to prove

a host of facts by clear and convincing evidence, the most relevant for our

purposes being that there is a reasonable probability that the conditions which

resulted in the child’s removal and continued placement outside the home will

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not be remedied by the parents and that termination is in the best interests of

the child. Ind. Code §§ 31-35-2-4(b)(2)(B)(i), (C); 31-37-14-2. We address each

of those factors in turn.

1. Reasonable Probability Conditions Will Not Be Remedied

[27] Before turning to the evidence supporting the trial court’s determination, we

note that the trial court also found that a reasonable probability existed that the

continuation of the parent-child relationship posed a threat to Child’s well-

being, another of the factors that may be shown under subsection 31-35-2-

4(b)(2)(B). This subsection is written in the disjunctive, so a trial court need

only find one of the factors enumerated there. Mother does not challenge the

validity of this conclusion by the trial court, and she has, therefore, waived her

claim that DCS failed to meet its evidentiary burden under this subsection. See

A.D.S. v. Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App.

2013) (finding issue waived for failure to make a cogent argument), trans. denied.

Nevertheless, given the importance of the interests involved, we will address the

evidence supporting the trial court’s conclusion regarding the probability that

the conditions that merited removal will not be remedied. [28] When reviewing a trial court’s determination that the conditions that resulted in

the child’s removal will not be remedied, we engage in a two-step analysis.

E.M., 4 N.E.3d at 642-43. First, we must identify the conditions that led to

removal; second, we determine whether there is a reasonable probability that

those conditions will not be remedied. Id. at 643. When engaging in the

second step of this analysis, a trial court must judge a parent’s fitness as of the

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time of the termination proceeding, taking into account evidence of changed

conditions, and balancing any recent improvements against habitual patterns of

conduct to determine whether there is a substantial probability of future neglect

or deprivation. Id. This delicate balance is entrusted to the trial court, and a

trial court acts within its discretion when it weighs a parent’s prior history more

heavily than efforts made only shortly before termination. Id. “Requiring trial

courts to give due regard to changed conditions does not preclude them from

finding that parents’ past behavior is the best predictor of their future behavior.”

Id. In making its determination, the trial court may consider the services

offered to the parents and the parents’ response to those services. In re W.M.L.,

82 N.E.3d 361, 367 (Ind. Ct. App. 2017). [29] Here, the primary issue necessitating removal of Child was Mother’s drug and

alcohol use. DCS’s initial involvement with this family and subsequent CHINS

determination in 2015, the 2017 DCS informal adjustment, and the March 6,

2018, removal of Child from Mother’s care were all the result of Mother

abusing alcohol and illegal substances. Mother was offered substance abuse

evaluations, IOP, random drug screens, and individual and group therapy to

address her substance abuse. Mother was unsuccessfully discharged from

treatment at the Samaritan Center and Brentwood Springs following her

informal adjustment. Mother was referred again to Samaritan Center but never

engaged in services there. Following the March 6, 2018, removal of Child,

Mother failed to engage in the referred group and individual therapy at

Samaritan Center recommended to treat her substance abuse issues, and she

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was yet again unsuccessfully discharged. In October of 2018, Mother was

referred to programs at LifeSprings, but she continued to use methamphetamine

and alcohol and was unsuccessfully discharged from those services as well. [30] Thus, Mother had a pattern of unsuccessful treatment throughout the CHINS

proceedings. “We have often noted that evidence of a parent’s pattern of

unwillingness or lack of commitment to address parenting issues and to

cooperate with services demonstrates the requisite reasonable probability that

the conditions will not change.” S.S., 120 N.E.3d 605, 611 (Ind. Ct. App.

2019). Nevertheless, Mother argues that her failures were due to not being

placed in the in-patient treatment she requested but was denied after being told

that DCS did not provide that service. This argument is unpersuasive for at

least two reasons. First, there was conflicting testimony regarding whether

DCS would provide in-patient treatment. PCM Rhoads testified that DCS had

spoken to Mother on August 9, 2018, about entering in-patient treatment which

they would find for her if she wished, but that Mother had declined that

treatment. This is the evidence that supports the trial court’s findings and

judgment, so it is the only evidence we consider on appeal. See In re E.M., 4

N.E.3d at 642. In addition, the failure of DCS to provide a particular service

during the underlying CHINS proceedings cannot be the basis for attacking the

validity of an order terminating parental rights. See In re J.W., Jr., 27 N.E.3d at

1190. [31] After Mother was incarcerated following her December 30, 2018, arrest, she

was again referred for programs and treatment. Mother argues that the trial

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court failed to sufficiently credit her progress while incarcerated. However, it

was within the trial court’s discretion to weigh Mother’s history of failed

compliance with substance abuse treatment more heavily than any recent

improvements. E.M., 4 N.E.3d at 643. Indeed, although Mother had shown

some improvements after being incarcerated, she came to a parenting time

session on January 19, 2019, smelling of alcohol, tested positive for alcohol on

February 18, 2019, and submitted a diluted urine sample as late as April 2019.

All of these events occurred after the petition to terminate her parental rights

had been filed, and all occurred even though she was in the controlled

environment of her work release placement. PCM Rhoads testified that she

was concerned that Mother did not make any progress in addressing her

substance abuse issues when she was free in society and had only shown

improvement after being placed in work release. The trial court reasonably

concluded in light of this evidence that Mother’s long-term history of failure to

address her substance abuse outweighed her very recent improvements and,

thus, that there was a reasonable probability that this condition of removal

would not be remedied. [32] We come to the same conclusions regarding the other reasons for removal—

Mother’s mental health, her lack of stable housing, and the instability of her

employment. Mother was prescribed an anti-depressant as part of the DCS

informal adjustment, but she did not take it. Following Child’s removal,

Mother was diagnosed with depression after an evaluation at the Samaritan

Center but did not engage in the therapy to which she was referred. Mother did

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not attend therapy consistently until after being incarcerated. She did not begin

taking her medication consistently until two or three weeks before the May 29,

2018, fact-finding hearing in this matter. The trial court was not obligated to

overlook Mother’s long-term pattern of failing to address her mental health in

favor of this recent short-term compliance. See id. [33] In addition, Mother made little progress addressing her housing and

employment stability. Mother moved four times during the CHINS

proceedings. She only attended one-third of the parenting aide sessions meant

to help her with her housing. Mother’s plan after finishing work release was to

live in the apartment where Crays, the boyfriend who she had been arrested for

stabbing with a paring knife and who himself had a substantiated DCS history

for sexual activity with a child, was still living and had his name on the lease.

Mother was not truthful with her service providers about ending the

relationship and professed not to understand why this living arrangement would

not be approved by DCS. [34] Mother also failed to maintain stable employment, as, prior to her December

30, 2018, arrest she had at least four jobs in quick succession. She was fired

from her job at Jasper Rubber for fighting with her superior. While she was on

work release, Mother worked at a fast-food restaurant for three months but was

fired for drinking alcohol on the job and allowing Crays to loiter there.

Although she was employed at the time of the second fact-finding hearing, the

trial court was within its discretion to recognize and credit Mother’s long-term

history of employment instability. See id. Given the evidence of Mother’s long-

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term failure to address her substance abuse, mental health, housing, and

employment issues, we find that the trial court’s conclusion that there was a

reasonable probability that the conditions meriting removal would not be

remedied was supported by the evidence.

2. Child’s Best Interests

[35] Mother also challenges the trial court’s conclusion that termination of her

parental rights was in Child’s best interests. Our supreme court has recently

recognized that one of the most difficult aspects of a termination of parental

rights determination is the issue of whether the termination is in the child’s best

interests. Id. at 647 (noting that the question “necessarily places the children’s

interest in preserving the family into conflict with their need for permanency”).

The trial court’s determination that termination was in the child’s best interests

requires it to look at the totality of the evidence of a particular case. In re D.D.,

804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. “In doing so, the trial

court must subordinate the interests of the parents to those of the children

involved.” Id. The court is not required to wait until the child is irreversibly

harmed before terminating the parent’s rights. McBride v. Monroe Cnty. Office of

Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In addition, a

recommendation by the case manager or the child’s advocate that the parent’s

rights should be terminated, together with evidence that the conditions that

merited removal will not be remedied, is sufficient to sustain a trial court’s

determination that termination is in the child’s best interests. In re J.C., 134

N.E.3d 419, 433 (Ind. Ct. App. 2019).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020 Page 21 of 23 [36] We have already concluded that there was sufficient evidence that there was a

reasonable probability that the conditions meriting Child’s removal would not

be remedied. PCM Rhoads felt that Child’s adoption by her foster parents was

in Child’s best interests. CASA Frances also testified that adoption by foster

parents was in Child’s best interests because Mother did not have a

demonstrated long-term history of stability outside of a controlled environment.

This evidence alone was sufficient to support the trial court’s “best interests”

determination. See id. [37] Other evidence buttressed the trial court’s conclusion. Child was thriving in the

home of her foster parents. Her educational concerns had been resolved, she

was attending school regularly, had a routine, and felt safe. Child was bonded

to both foster parents and to the other foster child in the home, whom Child

looked upon as her little sister. Child was receiving the stability in her foster

home that Child’s therapist felt was “the number one factor[]” for Child. (Tr.

Vol. III, p. 71). We conclude that the totality of the evidence supports the trial

court’s findings and conclusions that termination of Mother’s parental rights

was in Child’s best interests. See In re D.D., 804 N.E.2d at 267.

CONCLUSION [38] Based on the foregoing, we conclude that Mother’s due process rights were not

infringed upon by the timing of the filing of DCS’ petition to terminate her

parental rights and that the evidence supported the trial court’s Order. [39] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020 Page 22 of 23 Baker, J. and Brown, J. concur Court of Appeals of Indiana | Memorandum Decision 19A-JT-2234 | March 9, 2020 Page 23 of 23