MEMORANDUM DECISION
Statement of the Case
[1] M.L. (“Mother”) appeals the termination of the parent-child relationship with her two daughters, A.L. (“A.L.”), and M.J.L. (“M.J.L.”) (collectively “the children”). Mother argues that there is insufficient evidence to support the terminations. Concluding that there is sufficient evidence to support the terminations, we affirm the trial courts judgment.
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[2] We affirm.
Issue
Whether there is sufficient evidence to support the termination of the parent-child relationships.
Facts
[3] The facts most favorable to the terminations reveal that thirty-one-year-old Mother is the parent of A.L., who was born in February 2019, and M.J.L., who was born in December 2021. Mother began smoking marijuana and drinking alcohol when she was sixteen years old. She began using heroin and opioids when she was nineteen years old. Her parents (“maternal grandparents”) sent her to a drug treatment program, where she claims that she learned to be a better drug addict. Mother relapsed and was hospitalized after she completed the drug treatment program. Following her hospitalization, Mother did not use drugs for three years.
[4] Mother met Father in 2016, when she was twenty-four years old, and they eventually began using heroin together. In February 2017, Mother and Father moved to Arizona “to pretty much clean [them]selves up” by participating in a methadone program. (Tr. Vol. 2 at 10). Mother also used medical marijuana during the time that she and Father lived in Arizona.
[5] Mother and Father married in June 2018, and A.L. was born in February 2019. A.L. tested positive for methadone and marijuana at birth. When Mother saw A.L. “withdraw from Methadone in the hospital, it really kicked it into gear for [her] that [she did not] ever want to see a child withdraw like that again. It was ․ awful.” (Tr. Vol. 2 at 11). Because A.L. had tested positive for methadone and marijuana at birth, the department of child services in Arizona was involved with the family for approximately six months.
[6] In early 2021, Mother and Father both relapsed, and Father was arrested after he broke a door and several glass items in the home. While Father was incarcerated, Mother and A.L. moved back to Indiana and briefly lived with maternal grandparents. Father returned to Indiana following his release from incarceration, and Mother, Father, and A.L. moved into a home that Father owned. Mother and Father began using drugs again, and, at some point, Mother was convicted of possession of a controlled substance and was placed on probation.
[7] In September 2021, Father overdosed in the home. Mother, who was pregnant, called 911. Law enforcement officers arrived at the scene and “Narcan-ed [Father] and saved his life that time.” (Tr. Vol. 2 at 8). Law enforcement officers told Mother that DCS would be contacting her because A.L. had been in the home at the time of Fathers overdose. A DCS case worker went to Mothers home a few days later. Mother denied using illegal substances but refused a drug test.
[8] In October 2021, DCS filed a petition alleging that A.L. was a child in need of services (“CHINS”) but allowed A.L. to remain in Parents’ home. A few days later, two DCS family case managers visited Mothers home and requested that Mother take a drug screen. Mother complied with the request and tested positive for morphine and fentanyl. A family case manager returned to Mothers home three weeks later, and Mother again tested positive for fentanyl. Because of the positive drug screens and the potential lethality of fentanyl, DCS removed A.L. from Mothers care and placed her with maternal grandparents in November 2021.
[9] Mother gave birth to M.J.L. in early December 2021. At the time she was born, M.J.L. demonstrated drug withdrawal symptoms, such as tremors, irritability, sleeplessness, and tight muscle tone, and her umbilical cord tested positive for opiates and morphine. DCS removed M.J.L. from Parents and planned to place her with A.L. and maternal grandparents. However, maternal grandparents told the DCS case manager that an infant would be too much for them to handle when they already had A.L. in their home. Maternal grandparents suggested that DCS place M.J.L. with maternal grandfathers co-worker and his wife, who had recently adopted a child. According to maternal grandparents, if DCS placed M.J.L. with that family, the siblings would be able to see each other every weekend. DCS followed maternal grandfathers recommendation and placed M.J.L. with that family.
[10] In mid-December 2021, DCS filed a petition alleging that M.J.L. was a CHINS. Also, in mid-December 2021, the trial court adjudicated A.L. to be a CHINS. In a dispositional order, the trial court ordered Mother to: (1) submit random drug screens; (2) participate in supervised visits with A.L.; (3) participate in a clinical substance abuse assessment and follow the assessors recommendations; and (4) participate in individual counseling.
[11] In January 2022, Father overdosed and passed away. Following Fathers death, Mother attended a drug treatment program. However, she relapsed immediately after she had completed the program because she “didnt really want to be clean.” (Tr. Vol. 2 at 21).
[12] In March 2022, the trial court adjudicated M.J.L. to be a CHINS. The trial court ordered Mother to: (1) submit to random drug screens; (2) attend substance abuse therapy; and (3) attend parenting classes.
[13] During the summer of 2022, Mother continued to test positive for opiates, fentanyl, and marijuana. In August 2022, Mother began counseling with therapist Clifton Smith (“Therapist Smith”) at Apostolic Youth and Family Services. In October 2022, Mother began a methadone program in an attempt to stop using heroin. However, at the end of 2022 and the beginning of 2023, Mother continued to test positive for opiates, fentanyl, and marijuana. She also tested positive for cocaine.
[14] In February 2023, the trial court granted DCSs motion to suspend Mothers visitation with the children until she had clean drug screens for thirty days. DCS had been concerned about the high levels of fentanyl in Mothers drug screens. Mother understood that she had to have thirty days of clean drug screens in order to resume visitation with the children, but she was unable to abstain from the use of illegal substances for thirty days.
[15] In March 2023, DCS filed a petition to terminate Mothers parental relationships with the children. Following the filing of the termination petition, Mother continued to test positive for opiates, fentanyl, marijuana, and cocaine.
[16] Three months later, in June 2023, Mother completed a fourteen-day drug treatment program. However, after Mother completed the treatment program, she continued to test positive for fentanyl and marijuana. In August 2023, Mother began meeting with substance abuse counselor Brian Payne (“Counselor Payne”) to learn different coping skills to stay away from the marijuana that she had been buying on the street that had been laced with fentanyl. Also, in August 2023, Mother told Therapist Smith that she had used an LSD-type substance.
[17] In October 2023, Mother participated in a psychiatric examination with a psychiatrist from Apostolic Youth and Family Services. In a written report, the psychiatrist opined that Mother had been self-medicating with illegal drugs since she was sixteen years old and that Mothers cycle of addiction could be broken with treatment for her psychiatric symptoms.
[18] At the October 2023 termination hearing, the trial court heard the facts as set forth above. In addition, Mother testified that she had not used heroin since she had completed the drug treatment program in June 2023. However, she acknowledged that following her completion of the drug treatment program, she had continued to test positive for fentanyl and marijuana because the marijuana that she had been buying on the street had been laced with fentanyl. She further testified that she had not used any illegal substances in two days. According to Mother, she had not seen the children since February 2023 because she had not had thirty days of clean drug screens.
[19] DCS family case manager Sabrina Jordan (“FCM Jordan”) testified that the conditions that had led to DCS’ involvement in the case had not been remedied. FCM Jordan specifically testified that DCS had removed the children from Mother because of Mothers drug use. FCM Jordan further testified that Mother had tested positive for drugs throughout the pendency of the CHINS proceedings. FCM Jordan specifically pointed out that Mothers most recent drug test two weeks before the termination hearing had been positive for marijuana and fentanyl. FCM Jordan also testified that termination was in the childrens best interests because the children needed permanency. Lastly, FCM Jordan testified that maternal grandparents planned to adopt A.L. and that M.J.L.’s foster family planned to adopt her.
[20] In addition, A.L.’s therapist Brooke Janowski (“Therapist Janowski”) testified that A.L. had been participating in play therapy to learn to articulate her feelings and to be able to better communicate with maternal grandparents when she was upset. According to Therapist Janowski, A.L. was living in a very structured and happy environment with maternal grandparents. Therapist Janowski also testified that termination was in A.L.’s best interests.
[21] On the other hand, Therapist Smith testified that Mother had used drugs because DCS had “pretty much terminated [Mothers] ability to be with the [children] for more than six months[.]” (Tr. Vol. 2 at 105). Further, according to Therapist Smith, Mother had shown improvement in the case because, at the time of the termination hearing, she had not used heroin in four months. Therapist Smith also opined that termination was not in the childrens best interests because “[i]t is in the best interests of children that they are with their natural parents.” (Tr. Vol. 2 at 110).
[22] On cross-examination, Therapist Smith acknowledged that the trial court had stated that Mother could resume visits with the children if she had thirty days of clean drug screens. Therapist Smith also acknowledged that it was concerning that Mother had continued to test positive for marijuana and fentanyl throughout the proceedings and as recently as two weeks before the termination hearing. Lastly, Therapist Smith acknowledged that he had never spoken with the foster parents to determine how the children were doing.
[23] In November 2023, the trial court issued an order terminating Mothers parental relationships with A.L. and M.J.L. That order provides, in relevant part, as follows:
There is a reasonable probability that the conditions resulting in the removal of the children from their parents’ home will not be remedied[.]
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The Court finds that [M]others drug use is extensive and scary. Mother witnessed her husband overdose on at least four occasions. Mother had numerous people pass away including her husband due to substance use, and [M]other continued with her addiction. Mother has lost her children due to her substance use issues. The court has to wonder when [M]other would “hit rock bottom” and address the elephant in the room, the substance use. Mother continued with her addiction. Mother indicates that she is now clean, but admits she uses marijuana that is laced with fentanyl[.] Mother has been unable to obtain sobriety[.]
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Mother has not rectified the reasons for the childrens removals.
Although mothers eleventh hour attempt at sobriety is commended by the court, the court cannot gamble on the future of these children. Mothers long history of substance use and her short attempt at compliance cannot be ignored. Although [M]other is currently not testing positive for heroin, [M]other is still testing positive for marijuana and fentanyl. The best interest of the children cannot and will not be ignored. [A.L.] has been removed from her mothers care since November 2021 when she was two years old, thats half her life. [M.J.L.] has never been in the care or custody of mother. These children deserve a drug free stable home. These children deserve permanency. The children are doing well in their placements and have maintained their bond. The children are well loved and cared for in their placements[.]
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The Indiana Supreme Court has held that at some point in time a childs right to permanency outweighs a parent[’]s ever important right to parent. The Court finds that in these cases, [A.L.] and [M.J.L.] certainly have a right to permanency.
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It is in the best interest of the children and their health, welfare and future that the parent-child relationship between the children and their parents be forever fully and absolutely terminated.
(App. Vol. 2 at 57-59).
[24] Mother now appeals.
Decision
[25] Mother argues that there is insufficient evidence to support the termination of her parental relationships with the children. The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. In re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied. However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Id. at 1188. Termination of the parent-child relationship is proper where a childs emotional and physical development is threatened. Id. Although the right to raise ones own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id.
[26] Before an involuntary termination of parental rights may occur, DCS is required to allege and prove, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the childs removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2).
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DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K. v. Indiana Department of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013).
[27] When reviewing a termination of parental rights, this Court will not reweigh the evidence or judge the credibility of the witnesses. In re Involuntary Termination of Parent-Child Relationship of R.S., 56 N.E.3d 625, 628 (Ind. 2016). We consider only the evidence and any reasonable inferences to be drawn therefrom that support the judgment and give due regard to the trial courts opportunity to judge the credibility of the witnesses firsthand. K.T.K., 989 N.E.2d at 1229.
[28] Where, as here, the trial courts order contains specific findings of fact and conclusions of law, we engage in a two-tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). First, we determine whether the evidence supports the findings, and then, we determine whether the findings support the judgment. Id. Findings are clearly erroneous when there are no facts or inferences to be drawn therefrom that support them. Id. A judgment is clearly erroneous if the findings do not support the juvenile courts conclusions or the conclusions do not support the resulting judgment. Id.
[29] In addition, as a general rule, appellate courts grant latitude and deference to trial courts in family law matters. Matter of D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017). “This deference recognizes a trial courts unique ability to see the witnesses, observe their demeanor, and scrutinize their testimony, as opposed to this court[ ] only being able to review a cold transcript of the record.” Id.
[30] As a preliminary matter, we note that Mother does not challenge the trial courts findings. As a result, she has waived any argument relating to whether these unchallenged findings are clearly erroneous. See Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind. Ct. App. 2020) (explaining that unchallenged trial court findings are accepted as true), trans. denied. We now turn to the substantive issue in this case.
[31] Mother first argues that there is insufficient evidence to support the terminations because DCS failed to prove by clear and convincing evidence that: (1) there is a reasonable probability that the conditions that resulted in the childrens removal or the reasons for their placement outside the home will not be remedied; and (2) a continuation of the parent-child relationship poses a threat to the childrens well-being.
[32] However, we note that Indiana Code § 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore, DCS is required to establish by clear and convincing evidence only one of the three requirements of subsection (B). In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010), trans. dismissed. We therefore discuss only whether there is a reasonable probability that the conditions that resulted in the childrens removal or the reasons for their placement outside the home will not be remedied.
[33] In determining whether the conditions that resulted in a childs removal or placement outside 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 then determine whether there is a reasonable probability that those conditions will not be remedied. Id. The second step requires a trial court to judge a parents fitness at the time of the termination proceeding, taking into consideration 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. Habitual conduct may include a parents prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and a lack of adequate housing and employment. A.D.S. v. Indiana Department of Child Services, 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. The trial court may also consider services offered to the parent by DCS and the parents response to those services as evidence of whether conditions will be remedied. Id. Requiring a trial court to give due regard to changed conditions does not preclude them from finding that a parents past behavior is the best predictor of his future behavior. E.M., 4 N.E.3d at 643.
[34] Here, our review of the evidence reveals that DCS removed the children from Mothers home because of her drug use. During the two-year pendency of the CHINS proceedings, Mother, who has an extensive drug history, continued to test positive for illegal substances, including opiates and fentanyl. Further, although Mother attended a drug treatment program in June 2023 and testified that she had not used heroin since that time, she continued to test positive for fentanyl and marijuana and admitted that she had smoked marijuana that was laced with fentanyl. At the termination hearing, Mother testified that she had not used illegal substances for two days. Further, at the time of the October 2023 termination hearing, Mother had not had contact with the children since February 2023 because she had not had thirty days of clean drug screens. This evidence supports the trial courts conclusion that there is a reasonable probability that the conditions that resulted in the childrens removal or the reasons for their placement outside the home will not be remedied.
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[35] Mother also argues that there is insufficient evidence that the terminations were in the childrens best interests. In determining whether termination of parental rights is in the childrens best interests, the trial court is required to look at the totality of the evidence. In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. In so doing, the court must subordinate the interests of the parent to those of the children involved. Id. In addition, a childs need for permanency is a central consideration in determining that childs best interests. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers may support a finding that termination is in the childrens best interests. McBride v. Monroe County Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).
[36] Here, our review of the evidence reveals that at the time of the termination hearing, four-year-old A.L. had been out of Mothers home for two years and two-year-old M.J.L. had never lived with Mother. FCM Jordan testified that termination was in the childrens best interests because the children deserved permanency. In addition, Therapist Janowski testified that termination was in A.L.’s best interests. The testimony of these service providers, as well as the other evidence previously discussed, supports the trial courts conclusion that termination was in the childrens best interests. There is sufficient evidence to support the termination of Mothers parental relationships with the children.
[37] Affirmed.
FOOTNOTES
1
. The childrens father (“Father”) died of a drug overdose in January 2022.
2
. The Indiana General Assembly significantly amended Indiana Code § 31-35-2-4 while Mothers appeal was pending. See Ind. Public Law 70-2024, SEC. 4 (eff. Mar. 11, 2024). The amendment alters the allegations that DCS must include in a petition to terminate a parents parental rights. Here, because the amendment took effect after DCS filed the petition to terminate Mothers parental rights, the amendment does not apply to this case.
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. We agree with the State that Mothers reliance on Therapist Smiths testimony invites us to reweigh the evidence. This we will not do. See R.S., 56 N.E.3d at 628.
Pyle, Judge.
Bailey, J., and Crone, J., concur.