Termination: M L v. Indiana Department of Child Services ( 2023 )

FILED
Nov 22 2023, 9:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Nicole Slivensky Theodore E. Rokita
Bedford, Indiana Attorney General of Indiana
Patrick J. Smith David E. Corey
Bedford, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- November 22, 2023
Child Relationship of: Court of Appeals Case No.
23A-JT-1076
A.L. and N.L. (Minor Children),
Appeal from the Lawrence Circuit
And Court
M.L. (Father) and L.L. The Honorable Anah H. Gouty,
(Mother), Magistrate
Appellants-Responents, The Honorable Nathan G. Nikirk,
Judge
v. Trial Court Cause Nos.
47C01-2211-JT-393 & 47C01-2211-
Indiana Department of Child JT-395
Services,
Appellee-Petitioner.
Opinion by Judge Riley.
Judges Crone and Mathias concur.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellants-Respondents, L.L. (Mother) and M.L. (Father) (collectively,
Parents), separately appeal the trial court’s termination of their parental rights
to the minor children, N.L. and A.L. (collectively, Children).
[2] We affirm.
ISSUES
[3] Parents collectively present this court with five issues on appeal, which we
consolidate and restate as the following two issues:
(1) Whether the trial court abused its discretion when it denied Parents’
evidentiary requests; and
(2) Whether the trial court’s Order to terminate Parents’ parental rights is
clearly erroneous.
FACTS AND PROCEDURAL HISTORY
[4] Mother1 and Father 2 are the biological parents of N.L., born on June 15, 2017,
and A.L., born on December 17, 2020. On October 11, 2021, the Indiana
Department of Child Services (DCS) became involved with Parents and
Children after Parents checked themselves into IU Health for a heroin detox.
1
Mother is also the biological parent of two older children, A.N. and S.L., who have been adjudicated
Children in Need of Services (CHINS). A.N. is living with Mother’s godmother and S.L. is under a
guardianship with his paternal grandmother. Neither child has been in Mother’s care for five years.
2
Father is also the biological parent of a daughter, who resides with her mother in Bloomington, Indiana.
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Two days later, DCS removed Children on an emergency basis and placed
them in the care of their maternal great-grandmother (Grandmother). On
October 14, 2021, DCS filed its petition to adjudicate Children in Need of
Services (CHINS), alleging that Parents had a history of heroin abuse, that in
early October Parents were impaired and admitted to relapsing, that Mother
used heroin in the presence of Children, that Parents were evicted from their
home, and that Parents were admitted to the hospital on October 7, 2021 due to
suspected overdoses. On January 7, 2022, after Parents stipulated to the
allegations in DCS’s CHINS petitions, the trial court adjudicated Children to be
CHINS. One month later, on February 7, 2022, the trial court entered a
dispositional decree, ordering Parents to participate in services, including
random drug screens, supervised visitation, home-based casework, Fatherhood
Engagement for Father, substance abuse evaluation and all recommended
services, and recovery coaching. Children have remained outside Parents’ care
since their removal on October 13, 2021.
[5] Although Parents attended all child and family team meetings (CFTM) and
visited Children, Parents failed to address their substance abuse issues and
continued to use illegal substances. Parents have “severe opiate addictions”
and they “feel physically ill” when not using illegal drugs. (Appellant’s App.
Vol. II, p. 26). Father “feels normal when he uses heroin or fentanyl.”
(Appellant’s App. Vol. II, p. 26). Mother has overdosed three times, with the
most recent overdose in 2021, which required the administration of Narcan.
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[6] At some point in 2021, Mother completed a seven-day detox program at Valle
Vista. On June 6, 2022, Mother participated in a substance abuse assessment
with Katherine Brumfield (Therapist Brumfield). Mother reported that she
commenced using marijuana when she was sixteen years old, “snorting three
times a week when she gets sick.” (Transcript p. 21). She reported using heroin
daily for a month, with her last use the day before the assessment. Therapist
Brumfield diagnosed Mother with “opioid use disorder, severe” due to her
history of prolonged heroin use. (Tr. p. 23). Brumfield recommended that
Mother participate in a detox facility, with an outpatient treatment, life skills,
recovery coaching, and medically assisted treatment.
[7] On December 29, 2022, Mother commenced a five-to-seven-day detox program
at Valle Vista. At her intake, she reported her last heroin and Xanax use as
being on December 29—the day she started the program. She further advised
that she inhaled 1 to 1.5 grams of heroin daily, took Xanax three times a week,
and drank a pint of alcohol twice a week. At the time of her discharge, Valle
Vista arranged for Mother to be seen for outpatient treatment. Mother did not
follow-up on this recommendation and instead began using illegal drugs, testing
positive for fentanyl in February 2023, and again admittedly using within one
week of the termination of parental rights hearing. Mother’s longest period of
sobriety was three months. She did not always submit to drug screens during
the CHINS proceeding and had missed 309 calls for screening. When she did
submit to a drug screening, Mother consistently tested positive for fentanyl and
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some of her screens were also positive for 6-acetylmorphine, buprenorphine,
and cocaine.
[8] Father participated in “a portion of” a substance abuse assessment in June 2022
with Nikkia O’Bannon (Therapist O’Bannon). (Appellant’s App. Vol. II, p.
26). Father reported using fentanyl for the past year and while he did not
actively seek out fentanyl, he knew that it would “be in his heroin.” (Tr. p.
118). His last reported use before the assessment was June 7, 2022, and he
explained that he used “due to boredom and needing to get a buzz.” (Tr. p.
118). He advised that he overdosed approximately three years earlier.
Therapist O’Bannon diagnosed Father with opiate use disorder severe and
noted her “concern for [Father’s] multiple positive fentanyl screens during the
CHINS proceedings and admission that he uses heroin daily.” (Appellant’s
App. Vol. I, p. 26). When Therapist O’Bannon recommended inpatient
treatment, Father was not receptive and ended the intake assessment early.
Therapist O’Bannon provided Father with Narcan when he left.
[9] Father, like Mother, was admitted to Valle Vista for detox on December 29,
2022. During his intake assessment, Father reported using Xanax and fentanyl
for the last three years and was, at that time, using fentanyl daily. After his
discharge from Valle Vista during the first week in January2023, Father was
directed to commence substance abuse treatment. Although he made an
appointment to be seen at IU Health, he missed the appointment and
rescheduled it. Meanwhile, Father tested positive for fentanyl in February
2023. Father’s longest period of sobriety was three months. Like Mother,
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Father did not consistently submit to drug screens, having missed 246 calls for
screens.
[10] Throughout these proceedings, Parents experienced housing instability. They
resided in three different homes and at the time of the termination hearing, they
lived in a two-bedroom apartment owned by their friends. Parents did not
advise DCS about their address. Although Parents commenced home-based
services, they did not keep all their appointments and they did not meet their
home-based goals, which included obtaining a driver’s license, maintaining
sobriety, securing stable housing, and meeting financial stability. Mother was
unemployed at the time of the hearing; her most recent job lasted a month and
a half. Father worked in construction, but his work was “slow lately.” (Tr. p.
85). Parents relied on Father’s mother for financial support.
[11] By the time of the termination hearing, Children had been placed with
Grandmother for eighteen months. Grandmother had bonded with Children
and Children were comfortable in her care. Grandmother and N.L. attended
counseling services together to learn communication skills. Before therapy,
N.L threw emotional fits, and had displays of anger, aggression, and
dysregulation. After therapy, N.L. now turns to Grandmother for comfort and
continuity when she is struck with emotion. A.L.’s only therapeutic need is
speech therapy.
[12] At the CFTM held on September 2, 2022, Family Case Manager (FCM)
Jennifer Pace (FCM Pace), CASA, Parents, and Grandmother discussed
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permanency options for Children, including adoption and guardianship.
According to FCM Pace, DCS “left that sort of with [Grandmother] and how
[she] wanted to proceed” and DCS “would have been okay with a
guardianship, should that have been what [she] wanted to do.” (Tr. p. 155).
FCM Pace noted that “after discussing and [Grandmother] doing her own
research between the two, [she] was the one that if we changed [sic] the
permanency plan to adoption, that she would like to adopt [C]hildren.” (Tr. p.
156). Grandmother came to the CFTM prepared “with her own letter stating
that she wanted it filed with the court.” (Tr. pp. 156-57). This letter, written by
Grandmother on September 1, listed the pros and cons of guardianship and
adoption and discussed Grandmother’s decision of wanting to pursue adoption.
The September 1, 2022 letter was filed on September 8, 2022 as part of FCM
Pace’s status report to the trial court about the CFTM.
[13] On November 4, 2022, DCS filed its petition to terminate Parents’ parental
rights to Children. The trial court conducted a hearing on DCS’s petition on
January 27, March 10, and April 18, 2023. During the hearing, FCM Vicki
Strunk (FCM Strunk), who managed the case except for the period from July
29, 2022 through September 8, 2022, advised the trial court that Parents had not
remedied the conditions that led to the removal and that Children’s
reunification with Parents would threaten Children’s wellbeing. FCM Strunk
clarified that Parents had not addressed their substance abuse issues, failed to
consistently participate in recovery coaching and drug screens, and did not
maintain sobriety for more than two months. When asked if she had
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considered another option than adoption as the permanency plan for Children,
FCM Strunk responded that she was out on leave at the time that decision was
made. After she returned from leave and was apprised of the permanency plan
pursued by DCS, she supported the plan of adoption. Children’s CASA also
opined that adoption was in Children’s best interest as waiting for Parents to
reach sobriety would take “many, many years[.]” (Tr. p. 195).
[14] Grandmother confirmed during her testimony that she wanted to adopt
Children. She agreed that if Parents were not addicted to drugs, “[w]e wouldn’t
be here.” (Tr. p. 46). Upon questioning, Grandmother confirmed that
guardianship was discussed approximately two weeks prior to the March 10,
2023 hearing. She also stated that “someone” had explained to her what
guardianship entailed. (Tr. p. 47). She elaborated that DCS had told her that
Parents could terminate a guardianship and take Children back. She opined
that it would be “best that there’s permanently no relationship between”
Parents and Children. (Tr. p. 48). She confirmed that she wanted to adopt
Children and had decided against a guardianship because Parents needed to
work on their recovery and, based on her own personal experience, “it takes a
long time.” (Tr. p. 51).
[15] After Grandmother testified, and without Parents’ objection, the trial court
released her. Father’s counsel alerted the trial court that he might want to recall
Grandmother, and the trial court responded that since the court had released
Grandmother, Father would have to subpoena her. After DCS rested its case,
Mother’s counsel inquired with the trial court if Parents would be allowed to
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recall Grandmother. Again, the trial court explained that since Grandmother
had been released, a subpoena would be required. Mother’s counsel stated that
she understood. DCS counsel questioned the purpose of recalling
Grandmother: “We’ve talked a lot about the letter, so I’m not sure. We’ve
talked about guardianship. Today is not about guardianship. DCS has
presented the satisfactory [plan]” as adoption. (Tr. pp. 198-99). Treating
DCS’s question as an objection, the trial court asked Mother’s counsel why she
wanted to recall Grandmother since she had already testified and had been
subject to cross-examination. Mother’s counsel elaborated that because
Grandmother’s letter was not in evidence and the letter came up after
Grandmother had testified, counsel wanted to rebut some of the evidence that
had been admitted since her testimony. Denying the request, the trial court
explained that discovery had been exchanged and there had been “plenty of
notice.” (Tr. p. 199). Mother’s counsel then intended to recall FCM Pace.
DCS objected based on relevancy if Mother’s intent was to question her on the
guardianship. The trial court overruled the objection, allowed FCM Pace to
testify, and informed DCS that it could object during FCM Pace’s testimony.
[16] Upon being recalled, FCM Pace again testified that Grandmother brought a
letter to the September 2, 2022 CFTM. She did not remember whether she
advised Grandmother that “if [P]arents chose, they could terminate the
guardianship at any time without being obligated to complete the tasks needed
for reunification, thus placing [C]hildren in potential danger.” (Tr. p. 203).
Mother’s counsel asked if seeing the letter would refresh her recollection, to
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which FCM Pace responded affirmatively. DCS objected, “I don’t think it’s
refreshing her recollection as to what she said. She’s trying to refresh her
recollection as to someone else’s letter. I’m not sure how it’s even relevant.”
(Tr. p. 204). The trial court sustained the objection. Mother then made an offer
of proof:
She had referred earlier to a letter from [Grandmother]. We have
the copy of that letter and the letter states, if the parents so
choose, they can terminate guardianship -- terminate at any time,
referring to guardianship, before or at the end of the deadline
agreed upon. In this case, the [P]arents are not obligated to
complete the tasks given them for reunification per DCS, thus
putting [C]hildren in potential danger. So I wanted to ask FCM
Pace if this was the letter she had referred to earlier and if she had
given that advice to FCM Clark or not FCM Clark, I apologize,
[Grandmother] and I believe her answers would be yes to both
those questions.
(Tr. p. 206). DCS stated, “I think she said no[.]” (Tr. p. 206). The trial court
noted, “She said she did not recall,” and then asked FCM Pace if this was
correct. (Tr. p. 206). FCM Pace replied, “I didn’t offer that advice,” and the
trial court responded, “Okay.” (Tr. p. 206). Father’s counsel objected to FCM
Pace’s response, and both Parents moved to strike FCM Pace’s answer. The
trial court did not rule on the motion.
[17] Father’s counsel requested the trial court to take judicial notice of
Grandmother’s letter that was filed in the CHINS case as an attachment to the
CFTM to supplement Mother counsel’s offer of proof. DCS objected, arguing
that there had been a discussion with Grandmother during her testimony which
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had covered guardianship versus adoption. DCS added that Grandmother
“made her stance clear. I’m not sure the letter is going to add anything.” (Tr.
pp. 207-08). The trial court refused to take judicial notice of the letter.
[18] On April 25, 2023, the trial court entered its findings of fact and conclusions
thereon, terminating Parents’ rights to Children, concluding, in pertinent part
that:
There is reasonable probability that: a. The conditions which
resulted in [Children’s] removal and continued placement outside
the home will not be remedied; or b. Continuation of the parent-
child relationship poses a threat to [Children’s] wellbeing.
Termination of parental rights is in [Children’s] best interests.
There is a satisfactory plan for the care and treatment of
[Children] that being adoption.
(Appellant’s App. Vol. II, p. 29).
[19] Parents now appeal. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Admission of Evidence
[20] Parents, together or separately, challenge three evidentiary rulings made by the
trial court with respect to Grandmother’s September 1, 2022 letter. Specifically,
Parents challenge the trial court’s denial of Mother’s request to refresh FCM
Pace’s recollection with Grandmother’s September 1, 2022 letter; Mother
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contests the trial court’s denial of Father’s request to take judicial notice of the
letter for the purpose of appeal; and Mother contends that the trial court erred
by not permitting her to recall Grandmother. Finally, Mother maintains that
the trial court’s refusal to recall Grandmother violated her due process rights.
[21] Our standard of review of a trial court’s admission or exclusion of evidence is
an abuse of discretion. In re Des. B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014). A
trial court abuses its discretion only if its decision is clearly against the logic and
effect of the facts and circumstances before the court. Id. An error excluding
evidence is harmless if “its probable impact on the jury, in light of all of the
evidence in the case, is sufficiently minor so as not to affect the defendant’s
substantial rights.” Tunstall v. Manning, 124 N.E.3d 1193, 1200 (Ind. 2019).
When making this determination, we consider the evidence’s likely impact on a
reasonable, average jury. Id. “Likewise, reversible error cannot be predicated
upon the erroneous admission of evidence that is merely cumulative of other
evidence that has already been properly admitted.” In re Des. B., 2 N.E.3d at
834.
A. Refreshing Recollection
[22] Mother and Father separately argue—and DCS now agrees—that the trial court
abused its discretion by sustaining DCS’s objection to Mother’s attempt to
refresh FCM Pace’s recollection with Grandmother’s letter of September 1,
2022 as to whether FCM Pace had advised Grandmother of the legal
ramifications of a guardianship versus adoption.
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[23] Indiana Evidence Rule 612(a) allows a questioner to refresh a witness’s
memory using a writing or similar device after the witness indicates she has no
memory of the information sought. Thompson v. State, 728 N.E.2d 155, 160
(Ind. 2000). The item used to refresh the witness’s memory does not need to
have been written by the witness. Id. See also Cole v. State, 970 N.E.2d 779, 781
(Ind. Ct. App. 2012) (defendant sought to refresh a witness’s memory with a
writing prepared by a nurse who had met with the witness). Although we find
that the trial court abused its discretion by refusing to allow Mother to refresh
FCM Pace’s recollection with Grandmother’s letter, we conclude that the
refusal does not amount to a reversible error as the evidence sought to be
admitted—that FCM Pace may have advised Grandmother that Parents could
terminate a guardianship—was cumulative of Grandmother’s earlier testimony.
Prior to FCM Pace being called to the stand, Grandmother had testified that
“someone” at DCS had explained to her what a guardianship entailed. (Tr. p.
47). During cross-examination by Father, she confirmed that DCS had
informed her that a guardianship was not permanent, and that Parents could
terminate the guardianship. Grandmother advised the trial court that she
wanted to adopt Children and had decided against a guardianship because
Parents needed to work on their recovery and based on her own personal
experience, “it takes a long time.” (Tr. p. 51). Accordingly, any perceived
error in the exclusion of FCM Pace’s testimony was harmless and did not affect
Parents’ substantial rights. Tunstall, 124 N.E.3d at 1200.
B. Judicial Notice
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[24] Mother—but not Father—maintains that the trial court abused its discretion
when it denied Father’s request to take judicial notice of Grandmother’s
September 1, 2022 letter. Evidence Rule 201 “permits courts to take judicial
notice of certain material, including facts not subject to reasonable dispute and
facts readily determined from sources whose accuracy cannot be questioned.”
Horton v. State, 51 N.E.3d 1154, 1160 (Ind. 2016). Rule 201 also permits courts
to take judicial notice of “records of a court in this state.” Id. In the context of
termination proceedings, we have explained that a court may take judicial
notice of the CHINS proceedings. In re D.K., 968 N.E.2d 792, 796-97 (Ind. Ct.
App. 2012). Father made his request to judicially notice Grandmother’s letter
as part of Mother’s offer to prove, not to judicially notice any facts contained in
the letter but for “the single purpose of supporting and making [Mother’s] offer
to prove complete and the appeal complete.” (Tr. p. 209).
[25] On October 19, 2023, Mother filed with this court a motion for leave to file a
supplemental appendix in which she requested this court to take judicial notice
of Grandmother’s letter and to permit her to file a supplemental appendix
containing a copy of the letter. As Mother merely offered the document to aid
in this court’s review and the document was not proffered to fill evidentiary
gaps in the trial record, we granted Mother’s motion and took judicial notice of
Grandmother’s letter. See Banks v. Banks, 980 N.E.2d 423, 426 (Ind. Ct. App.
2012) (“Indiana Evidence Rule 201(f) does provide that judicial notice may be
taken at any stage of the proceeding, which includes appeals.”). Accordingly,
Mother’s claim of error is now moot.
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C. Recalling Grandmother
[26] Next, Mother contends that the trial court abused its discretion when it refused
her request to recall Grandmother to the stand after she had been released by
the trial court. The decision whether to permit the recall of a witness is within
the trial court’s sound discretion. Byrd v. State, 707 N.E.2d 308, 311 (Ind. Ct.
App. 1999).
[27] Mother explains that she “wanted to recall [Grandmother] to address new
information that came out subsequent to [Grandmother’s] testimony –
specifically, the September letter.” (Appellant Mother’s Br. p. 27). However,
Grandmother’s September 1, 2022 letter was not new evidence. While the
letter was first mentioned through FCM Pace’s testimony, the letter had been
filed with the trial court by DCS as an attachment to its progress report, on
September 8, 2022. The record reflects that at the January 9, 2023 pretrial
hearing, Father’s counsel reported that he had received discovery consisting of
approximately 1,200 pages. Neither Mother nor Father dispute that the
September 1, 2022 letter was discovered to them. Thus, by March 10, 2023,
when Grandmother testified in the termination proceeding, Mother’s counsel,
who had also been Mother’s counsel in the CHINS proceedings, had received
notice of Grandmother’s September 1, 2022 letter. Therefore, by the time FCM
Pace testified as to the existence of the letter, the record established that
discovery had been completed, the letter had been filed in the CHINS case well
before Grandmother’s testimony, and Grandmother had been subject to two
rounds of cross-examination by Parents’ respective counsel about her decision
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to pursue adoption in lieu of guardianship. Accordingly, we cannot say that the
trial court’s decision is against the logic and effect of the facts and
circumstances before the court. See id., see also Clark v. State, 668 N.E.2d 1206,
1208 (Ind. Ct. App. 1996) (no abuse of discretion when the party seeking to
recall had the opportunity to elicit the requested testimony).
D. Due Process Rights
[28] Lastly, Mother contends that the trial court’s refusal to allow her to recall
Grandmother to the stand and question her about her understanding of
guardianship proceedings resulted in a denial of Mother’s due process rights to
cross-examine witnesses. However, while Mother raised an evidentiary claim
about recalling Grandmother as a witness, Mother never raised this concern as
a due process claim before the trial court. As she now raised her due process
argument for the first time on appeal, her argument is waived for our review.
See In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (party on appeal may waive a
constitutional claim, including a claimed violation of due process rights, by
raising it for the first time on appeal).
II. Termination of Parental Rights
A. Standard of Review
[29] Parents challenge the trial court’s termination of their parental rights to
Children. The Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and raise their
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children. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147
(Ind. 2005). “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 (2000)). However, parental rights
“are not absolute and must be subordinated to the child’s interests in
determining the proper disposition of a petition to terminate parental rights.”
Id. If “parents are unable or unwilling to meet their parental responsibilities,”
termination of parental rights is appropriate. Id. We recognize that the
termination of a parent-child relationship is “an ‘extreme measure’ and should
only be utilized as a ‘last resort when all other reasonable 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) (quoting Rowlett
v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct.
App. 2006)).
[30] Indiana courts rely on a “deferential standard of review in cases concerning the
termination of parental rights” due to the trial court’s “unique position to assess
the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.
dismissed. Our court neither reweighs evidence nor assesses the credibility of
witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.
2013). We consider only the evidence and any reasonable inferences that
support the trial court’s judgment, and we accord deference to the trial court’s
“opportunity to judge the credibility of the witnesses firsthand.” Id.B. Disjunctive Statutory Conclusions
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[31] In order to terminate a parent’s rights to his or her child, DCS must prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6)
months under a dispositional decree.
****
(iii) The child has been removed from the parent and has been
under the supervision of a local office . . . 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 a [CHINS] . . . ;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that
resulted in the child’s removal or the reasons for placement
outside the home of the parents will not be remedied.
(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 [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 § 31-35-2-4(b)(2). DCS must prove each of the foregoing elements by
clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,
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92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the
existence of a fact to be highly probable.” Id.[32] Here, the trial court generally concluded—without making any specific, tailored
conclusions—that the facts, as enumerated in its Order, supported that
There is reasonable probability that: a. The conditions which
resulted in [Children’s] removal and continued placement outside
the home will not be remedied; or b. Continuation of the parent-
child relationship poses a threat to [Children’s] wellbeing.
(Appellant’s App. Vol. II, p. 29). Father—but not Mother—contends that by
solely tracking the statutory language in its conclusion and not specifying which
of the two prongs of Indiana Code section 31-35-2-4(b)(2)(B) applied, the trial
court rendered Father’s constitutional right to one appeal illusory because it
prevented him from making a cogent argument and impaired appellate review.
[33] We have previously held in In re A.K., 924 N.E.2d at 220, that:
We believe that a judgment terminating the relationship between
a parent and child is impossible to review on appeal if it is
nothing more than a mere recitation of the conclusions the
governing statute requires the trial court to reach. Indiana’s
parents and children deserve more, and the basic notions of due
process inherent in our system of justice demand more.
Trial courts are required by statute to enter findings of fact and
conclusions of law in CHINS proceedings. Likewise, findings of
fact and conclusions of law are required in grandparent visitation
proceedings. Proceedings to terminate parental rights touch
interests at least as fundamental as those regarding CHINS and
grandparent visitation. We hold today that our courts must treat
Court of Appeals of Indiana | Opinion 23A-JT-1076 | November 22, 2023 Page 19 of 28
them accordingly, with the constitutional gravity they clearly
have, and enter findings of fact that support the entry of the
conclusions called for by the Indiana statute and common law.
In In re A.K., the trial court’s order merely recited the statutory requirements for
termination and did not include any findings of fact to support those
conclusions. Id. at 217. We remanded to the trial court for the entry of factual
findings to support its order. Id.
[34] Here, however, the trial court, through the inclusion of sixty-seven detailed
findings of fact, did include its overarching concerns leading to its decision to
terminate Parents’ parental rights. While we caution trial courts to refrain from
using the statutory language verbatim without the inclusion of more detailed
conclusions, the trial court’s findings provide us with enough information to
review whether the trial court based its judgment to terminate the parental
rights on proper considerations. Consequently, we will address Parents’
argument in light of the Trial Rule 52 standard of review rather than remand for
the entry of a new order. See also In re M.W., 942 N .E.2d 154, 159-60 (Ind. Ct.
App. 2011) (the omission of the conclusion that termination was in the child’s
best interest does not warrant remand to the trial court for the entry of a new
order).
C. Reasonable Probability
[35] In a continuation of his previous argument, Father contends that given his
efforts over the lifetime of the CHINS case to get treatment for his drug
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addictions and the general acknowledgement that addicts often make multiple
efforts to achieve and maintain sobriety, the trial court’s conclusion that Father
would not remedy the circumstances that led to the removal of Children was
not clearly and convincingly supported by the evidence.
[36] It is well-established that “[a] trial court must judge a parent’s fitness as of the
time of the termination hearing and take into consideration evidence of
changed conditions.” Stone v. Daviess Cnty. Div. of Children & Family Servs., 656
N.E.2d 824, 828 (Ind. Ct. App. 1995), trans. denied. In judging fitness, a trial
court may properly consider, among other things, a parent’s substance abuse
and lack of adequate housing and employment. McBride v. Monroe Cnty. OFC,
798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The trial court may also consider a
parent’s failure to respond to services. Lang v. Starke Cnty. OFC, 861 N.E.2d
366, 372 (Ind. Ct. App. 2007), trans. denied. “[H]abitual patterns of conduct
must be evaluated to determine whether there is a substantial probability of
future neglect or deprivation.” Stone, 656 N.E.2d at 828. A trial court “need
not wait until the child[] [is] irreversibly influenced by [its] deficient lifestyle
such that [its] physical, mental and social growth is permanently impaired
before terminating the parent-child relationship.” Id. Furthermore, “[c]lear and
convincing evidence need not reveal that the continued custody of the parents is
wholly inadequate for the child’s very survival. Rather, it is sufficient to show
by clear and convincing evidence that the child’s emotional and physical
development are threatened by the respondent parent’s custody.” K.T.K., 989
N.E.2d at 1230.
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[37] In adjudicating Children as CHINS, the trial court determined that Children’s
removal from Parents’ care was necessary due to Parents’ history of heroin
abuse, Parents were evicted from their home, and Parents were admitted to the
hospital on October 7, 2021 due to suspected overdoses. Throughout these
proceedings, Father consistently tested positive for illegal substances when he
submitted to drug screens, including his fentanyl positive screen in February
2023 during the termination proceedings. Father, who was diagnosed with
severe opiate use disorder, participated in some services, including a partial
substance abuse evaluation. However, when Father was apprised of the
recommendations resulting from this evaluation, he left before completing the
assessment. Father never reached his goal of maintaining sobriety; at most, he
remained sober for three months. Although he completed a detox program at
Valle Vista in late December 2022, by the time of the termination hearing, he
had yet to complete the recommended aftercare treatment, he had not
completed an inpatient program that he planned to attend and he continued to
test positive for illegal substances.
[38] Father’s failure to engage in services during these proceedings demonstrates a
“lack of commitment to complete the actions necessary to preserve [the] parent-
child relationship.” In re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002).
Our supreme court has previously concluded that “parents’ past behavior is the
best predictor of their future behavior.” In re E.M., 4 N.E.3d 636, 643 (Ind.
2014). Despite DCS’s referral to services to treat Father’s addictions, Father
refused to participate, continually screening positive for illegal substances.
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[39] Father’s citations to his own testimony in which he acknowledged his
addiction, his insight into his drug use, and his desire to complete a longer
substance abuse treatment program merely amount to impermissible requests
for this court to reweigh and judge anew witness credibility. See K.T.K., 989
N.E.2d at 1229. Similarly, Father’s reliance on FCM Strunk’s testimony that
she was “not in a rush personally” to terminate parental rights disregards the
numerous emphases by FCM Struck to the contrary that the case had been
open seventeen months and Children had waited long enough. The trial court
was entitled to weigh the evidence as it found appropriate in the context of this
case, and we affirm the trial court’s conclusion that a reasonable probability
exists that the conditions that resulted in Children’s removal will not be
remedied. See id. As such, we affirm the trial court’s decision. 3
D. Best Interests of Children
[40] Both Father and Mother separately challenge the trial court’s conclusion that
termination is in Children’s best interests. To determine whether termination is
in a child’s best interests, 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. The
court must subordinate the interests of the parents to those of the child and need
not wait until a child is irreversibly harmed before terminating the parent-child
3
Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and we affirm the trial court’s
termination based on the conclusion that there is a reasonable probability that Father would not remedy the
reasons for Children’s removal or placement outside the home , we will not address Father’s argument that
the continuation of the parent-child relationship poses a threat to Children.
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relationship. Id. In this regard, “recommendations by both the case manager
and the 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 convincing evidence that termination is in the child’s best interests.”
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158-59 (Ind. Ct. App.
2013), trans. denied. Here, FCM Strunk and CASA both supported the
termination of Parental rights and adoption by Grandmother. CASA opined
that waiting for Parents to achieve sobriety was not in Children’s best interests
as it could take “many, many years.” (Tr. p. 194).
[41] In support that termination is not in Children’s best interests, Mother offered a
three-fold argument: 1) the strong bond between parent and Children; 2) the
lack of any identified benefit from termination; and 3) the ready availability of a
less restrictive alternative. Although we acknowledge that Parents share a bond
with Children and the loving relationship was evident during visitation, Mother
testified that due to her addiction, she wanted Children to remain with
Grandmother. She advised that she could not say when she will be sober and
have the ability to provide a safe environment for Children.
[42] Mother refers this court to jurisprudence “where a reviewing court reversed a
termination when the evidence demonstrated that the parent had an ongoing,
positive relationship with the child” and termination was not in the child’s best
interests. (Appellant Mother’s Br. p. 19). However, these cases are inapposite
to the situation at hand. In In re G.Y., 904 N.E.2d 1257, 1263 (Ind. 2009), the
incarcerated mother had taken substantial steps to improve her life, including
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completing drug rehabilitation programs and individualized drug counseling,
she signaled a strong willingness and commitment in maintaining a parental
relationship with child, and she continued to participate in parenting and other
personal improvement programs after her release. Id. at 1264. In Matter of B.F.,
141 N.E.3d 75, 76 (Ind. Ct. App. 2020), mother and children were bonded,
mother’s parenting skills were appropriate, and the only lingering issue was
mother’s lack of stable and suitable housing. In In re H.G., 959 N.E.2d 271, 293
(Ind. Ct. App. 2011), the court concluded that parents had made significant
efforts at self-improvement, the children had been placed in a new foster home
shortly after termination, and no adoptive family had been identified.
[43] None of the considerations that warranted a reversal of the termination based
on the best interests of the child in In re G.Y., in Matter of B.F., and in In re H.G.,
are present here. Parents made no progress in their fight against their
addiction—they could not even produce a single negative screen. Even tough
Parents made an effort to attend and participate in some classes, there is no
evidence in the record that either Parent successfully completed a court-ordered
service. Parents did not demonstrate any commitment or interest in bettering
themselves for the benefit of their Children.
[44] Permanency is a central consideration in determining the best interests of a
child. In re G.Y., 904 N.E.2d at 1264. At the time of the termination hearing,
Children had been with Grandmother for eighteen months—which was half of
A.L.’s life. Children have bonded with Grandmother and N.L. is getting the
necessary counseling services to address her communication and emotional
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issues. With Mother diagnosed with severe opiate addiction and still testing
positive for illegal substances during the termination proceedings, there is no
possible date in sight to commence a reunification attempt with Mother and, as
such, there exists no permanent stability. “Termination, allowing for a
subsequent adoption, would provide [Children] with the opportunity to be
adopted into a safe, stable, consistent, and permanent environment where all
their needs will continue to be met, and where they can grow.” In re A.D.S.,
987 N.E.2d at 1159.
[45] Father, in a somewhat similar vein, contends that the trial court
overemphasized permanency, and that delaying permanency would not harm
Children. Because he maintained a bond with Children, and considering that
Children would remain in Grandmother’s care, he argues that he should be
given additional time to straighten out his life given that he had taken positive
steps and shown insight in his addiction patterns. In support, Father relies on
In re R.S., 56 N.E.3d 625 (Ind. 2016). In In re R.S., our supreme court
acknowledged that “when a child is in relative placement, and the permanency
plan is adoption into the home where the child has lived for years already,
prolonging the adoption is unlikely to have an effect upon the child. Further,
even when a father has had a troubled past and failings as a parent, our courts
will also recognize the positive steps a father has taken to turn his life around
for the sake of himself and his children.” Id. at 630 (internal citations omitted).
Referencing the loving bond that R.S. and father shared, father’s successful
completion of multiple self-improvement and parenting courses, father’s
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successful completion of probation, his repeatedly expressed desire to parent
R.S., and his exercise of regular visitation with R.S., the court reversed the trial
court’s conclusion that termination was in the child’s best interest, as the court
did “not believe that this case has reached the last resort stage.” Id. at 631. To
the contrary here, Father has not undertaken a single positive step to either
better himself or to be a positive influence for Children. There is not a single
negative drug screen—if Father bothered to submit to drug screens in the first
place—Father did not complete a single court-ordered class, and Father did not
find stable employment, an appropriate home, or achieve financial
independence. Although Father did visit Children, Father did not demonstrate
the slightest improvement in any area of his life.
[46] In a related argument Father also contends that termination is not in Children’s
best interests because Grandmother expressed a desire for Children to have a
continued family relationship with Parents. However, the record reflects that
Grandmother unequivocally testified that she “want[ed] to adopt the children”
and she “want[ed] them to stay with [her] forever.” (Tr. p. 50). She decided
against guardianship because it was not a permanent solution and she advised
“it would be better for [C]hildren if there was no legal family relationship
between [C]hildren and their [P]arents” because “under the circumstances right
now, [] they need to concentrate on themselves[.]” (Tr. p. 48). Grandmother
did inform the court that, after adoption and if Parents , in the future, did
recover, Parents “could be part of the family” through visitation. (Tr. p. 51).
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[47] We remind Parents that we evaluate the trial court’s order to terminate parental
rights in the light of the best interests of Children—not the best interests of
Parents. The evidence overwhelmingly reflects that Parents failed to avail
themselves of the opportunities and services offered by DCS to reunite with
Children and made no progress nor commitment during the proceedings of the
case. “[C]hildren cannot wait indefinitely for their parents to work toward
preservation or reunification.” In re E.M., 4 N.E.3d at 648. Even though “the
ultimate purpose of the law is to protect the child, the parent-child relationship
will give way when it is no longer in the child’s best interest to maintain this
relationship.” In re B.D.J., 728 N.E.2d 195, 200 (Ind. Ct. App. 2000). Parents’
inability to address their addiction and to provide a safe environment for
Children, together with their lack of participation in services requested by DCS,
supports the trial court’s conclusion that termination of Parents’ parental rights
is in the best interests of Children. Accordingly, we affirm the trial court’s
decision.
CONCLUSION
[48] Based on the foregoing, we conclude that the trial court did not abuse its
discretion by refusing to admit certain evidence requested by Parents and that
DCS presented sufficient evidence to support its petitions to terminate the
parent-child relationship.
[49] Affirmed.
[50] Crone, J. and Mathias, J. concur
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