In the Termination of the Parent-Child relationship of A.S.L.F. (Minor Child), and A.F. (Mother) Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

Case Summary

[1] A.F. (“Mother) is the biological mother of A.S.L.F. (“Child”).¹ Three days after Child's birth, the Indiana Department of Child Services (“DCS”) removed Child from Mother's care, and the juvenile court adjudicated Child to be a child in need of services (“CHINS”) based on Mother's drug use and homelessness. That same day, the juvenile court entered a dispositional order in which it ordered Mother to participate in reunification services. Ultimately, DCS petitioned to terminate Mother's parental rights. After a hearing on DCS's petition, the juvenile court issued an order terminating Mother's parental rights based on her noncompliance with DCS-ordered services. Mother contends that the juvenile court's order terminating her parental rights is clearly erroneous. We affirm.

Facts and Procedural History

[2] In July of 2021, Child, who has special needs, was born to Mother and had been exposed to methamphetamine and heroin in utero. Three days later, DCS took Child into custody based on Mother's drug use and homelessness. That same day, DCS filed a petition alleging Child to be a CHINS. Mother admitted that Child was a CHINS.

[3] On August 26, 2021, the juvenile court conducted a dispositional hearing. After that hearing, the juvenile court ordered Mother to, among other things, (1) maintain contact with the family case manager (“FCM”); (2) participate in programs recommended by the FCM; (3) keep all appointments with service providers; (4) maintain safe, suitable, and stable housing; (5) secure and maintain a legal source of income; (6) avoid using illegal substances; (7) complete parenting and substance-abuse assessments; (8) complete a psychological evaluation; and (9) attend scheduled visitation.

[4] That same month, DCS opened referrals for several services; however, DCS ultimately closed those initial referrals for Mother “[d]ue to [her] noncompliance and just not scheduling those appointments.” Tr. Vol. II p. 86. The dispositional order required Mother to participate in weekly drugs screens. In 2021, Mother completed only ten screens, all of which “were positive for fentanyl [and] meth.” Tr. Vol. II p. 87. In 2022, DCS could not locate Mother and her telephone number was inactive. During that year, Mother wholly failed to participate in drugs screens and services; in fact, she had “zero engagement” with DCS. Tr. Vol. II pp. 89. In March of 2022, in connection to an unrelated criminal case, Mother was served with a bench warrant after a probation-revocation petition had been filed after she had failed to report to her probation officer and absconded. In August of 2022, the juvenile court changed Child's permanency plan to adoption.

[5] In March of 2023, DCS petitioned to terminate Mother's parental rights. One month later, the State charged Mother with drug possession and theft. A few days after that, the State again petitioned to revoke Mother's probation, which led to a bench warrant being issued and executed. Mother was incarcerated until September 8, 2023, pursuant to a guilty plea and admission to her probation violation. As a condition of her plea agreement, Mother's sentence was suspended subject to her compliance with the Clark County Addiction Treatment Services program (“the CCATS program”). The CCATS program included “rigorous supervision and regular meetings with her case worker, addiction recovery services, drug screens, and regular courtroom attendance.” Appellant's App. Vol. II p. 11. Mother's compliance with the CCATS program was “great overall with a couple of hiccups along the way.” Appellant's App. Vol. II p. 12.

[6] Upon her release from incarceration in September of 2023, Mother reengaged with DCS services. However, according to court-appointed special advocate (“CASA”) Alaina Pryor, who was assigned to Mother's case in May of 2023, Mother did “not engage[ ] substantially with the dispositional order” by neglecting to complete a parenting assessment, substance-abuse assessment, clinical assessment, therapy, home-based case work, or any other service DCS had recommended as part of the dispositional order. Tr. Vol. II p. 66.

[7] On September 29, 2023, Mother tested positive for fentanyl on a DCS drug screen. That same day, but before the DCS screen, Mother had also provided a urine sample for a CCATS program drug screen, which results were negative. On October 9, 2023, Mother tested positive for methamphetamine on a DCS drug screen. However, Mother's CCATS program file included a note from a medical provider explaining that one of her medications contained Sudafed and warned that this could result in a false positive drug screen.

[8] On October 19 and December 15, 2023, the juvenile court conducted a fact-finding hearing on DCS's petition to terminate Mother's parental rights. Mother had not seen Child in two years and testified that “she has never been good at ‘adulting.’ ” Appellant's App. Vol. II p. 41. Additionally, Mother had been living in a hotel, which FCM Justin McNalley testified was “not stable housing.” Tr. Vol. II p. 142. Child has special needs and is suspected to have autism, though she has not been diagnosed. Child “will often scream endlessly for hours” and is “unable to self-soothe [․] as she should be able to at two years old.” Tr. Vol. II p. 34. Mother has not participated in Child's medical appointments or the medical-decision-making process for Child, which the juvenile court noted was “concerning[,]” given Child's special needs. Appellant's App. Vol. II p. 41. Moreover, the juvenile court noted that “there is no evidence” that Mother “has taken any steps to learn about these needs or to educate” herself and prepare to “parent a child with special needs.” Appellant's App. Vol. II p. 41. Notably, Child is “thriving in the foster home, with all their physical and emotional needs being met.” Appellant's App. Vol. II p. 41.

[9] At the fact-finding hearing, FCM Claire Elmore testified that adoption is an appropriate permanency plan for Child and that termination of Mother's parental rights was in Child's best interests. FCM Elmore testified that she was concerned because a “safe and sober household hasn't been established.” Tr. Vol. II p. 104. While FCM Elmore testified that Mother has made limited progress, she did not believe that it was enough to justify reunification. Moreover, CASA Pryor testified that adoption “is what's best for” Child and that Child's foster placement is meeting all of Child's needs. Tr. Vol. II p. 28. CASA Pryor believes that termination of Mother's parental rights is in Child's best interests due to Mother's “failure to complete recommended services since Child's removal” and her “failure to fulfill necessary parental obligations and responsibilities[․], as well as the Child's progress in foster care.” Appellant's App. Vol. II p. 42.

[10] On February 15, 2024, the juvenile court issued an ordered terminating Mother's parental rights based on Mother's drug use, homelessness, failure to complete certain DCS services, lack of bond with Child, and criminal activity. With regard to the drug-screen result discrepancies between the DCS screen and the CCATS program screen in September of 2023, the juvenile court found that there was no testimony to undermine the validity of the positive DCS screen.

[11] “Employing the rationale behind Occam's Razor,” the juvenile court reasoned that the best explanation was that Mother ingested fentanyl after she had completed her CCATS screen but before her DCS screen. Appellant's App. Vol. II p. 39. The juvenile court explained that “to reach the conclusion that the [DCS] test, which was both subsequent to the [CCATS] test and which went through confirmatory analysis, must be flawed would require the court to hypothesize about evidence not in the record.” Appellant's App. Vol. II pp. 38–39. Likewise, the juvenile court did not believe that Sudafed had caused Mother's positive drug screen on October 9, 2023, given Mother's history of drug use. Based on these facts and the testimony of the various service providers, the juvenile court terminated Mother's parental rights to Child.

Discussion and Decision

[12] The U.S. Constitution protects a parent's right to raise her children; however, that right “may be terminated when parents are unable or unwilling to meet their parental responsibilities.” In re N.G., 51 N.E.3d 1167, 1169 (Ind. 2016) (citing Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005)). In other words, parental rights, when necessary, must be subordinate to the children's best interests. In re A.B., 887 N.E.2d 158, 164 (Ind. Ct. App. 2008). The termination of parental rights is appropriate “where the children's emotional and physical development is threatened.” In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. However, juvenile courts “need not wait until the children are irreversibly harmed [․] before terminating the parent-child relationship.” Id.

[13] When reviewing the termination of a parental relationship,

[w]e do not reweigh the evidence or determine the credibility of witnesses, but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment.

In re N.G., 51 N.E.3d at 1170. Given the juvenile court's proximity to the evidence and witnesses, we will reverse its decision to terminate a parent-child relationship only if the decision is clearly erroneous. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). “A finding is clearly erroneous when there are no facts or inferences drawn therefrom that support it. A judgment is clearly erroneous only if the findings of fact do not support the [juvenile] court's conclusions thereon, or the conclusions thereon do not support the judgment.” In re A.B., 887 N.E.2d at 164 (internal citations omitted).

[14] To support the termination of Mother's parental rights to Child, DCS needed to 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 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 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).² Notably, Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, requiring only one of those elements to be satisfied. See In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).

A. There is a reasonable probability that Mother will not remedy the conditions leading to Child's removal

[15] Mother argues that the DCS failed to carry its burden to show that there was a reasonable probability that the conditions leading to Child's removal would not be remedied. Specifically, Mother contends that DCS did not show that her homelessness and drug addiction was not remedied. We, however, disagree.

[16] The juvenile court concluded that there is a reasonable probability that Mother will not remedy the conditions resulting in Child's removal and continued placement outside her care. In determining whether a parent will remedy such conditions, a juvenile court conducts a two-step inquiry: First, the juvenile court must determine what led the child's removal or continued placement in foster care, and second, the juvenile court must determine whether a reasonable probability exists that the conditions justifying the child's continued placement outside the home will not be remedied. In re K.T.K., 989 N.E.2d 1225, 1231 (Ind. 2013).

[17] In assessing the second step, the juvenile court must judge a parent's fitness at the time of the termination hearing, taking into account evidence of changed conditions. K.E. v. Ind. Dep't of Child. Servs., 39 N.E.3d 641, 647 (Ind. 2015). However, these “[c]hanged conditions are balanced against habitual patterns of conduct to determine whether there is a substantial probability of future neglect.” Id. When evaluating a parent's habitual patterns of conduct, the juvenile court may consider the parent's “criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment[.]” Id. This balancing act is entrusted to the juvenile court, “which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination.” In re E.M., 4 N.E.3d at 643.

[18] Here, the juvenile court concluded that there is a reasonable probability that the conditions leading to Child's removal would not be remedied, and we agree. Mother has wrestled with drug addiction for years; in fact, in 2021, she participated in ten DCS drug screens, all of which “were positive for fentanyl [and] meth.” Tr. Vol. II p. 87. Moreover, Mother disappeared from DCS's radar in 2022 and had “zero engagement” with DCS. Tr. Vol. II pp. 89. Presumably, Mother participated in no drug screens because she was aware that she would have tested positive in that timeframe. See In re A.B., 924 N.E.2d 666, 671 (Ind. Ct. App. 2010) (reasoning that a parent whose drug use led to child's removal cannot refuse drug testing and later claim that DCS has failed to prove continued use).

[19] Additionally, while Mother produced some negative drug screens in 2023, she produced a positive test for fentanyl on September 29, 2023, and one for methamphetamine on October 9, 2023. In 2023, the State charged Mother with drug possession and theft, resulting in the State seeking to revoke her probation and her being incarcerated from May until September of 2023. Mother's continued drug use and criminal activity supports the juvenile court's conclusion that the conditions leading to Child's removal would not be remedied. See In re K.T.K., 989 N.E.2d at 1232–34 (concluding that the conditions prompting child's removal would not be remedied where mother tested positive for drugs throughout the life of the case and was ultimately incarcerated on a drug-related crime).

[20] Further, Mother's housing situation is still relatively unstable. At the time of the termination hearing, Mother was living in a hotel, which FCM McNalley testified was “not stable housing.” Tr. Vol. II p. 142. Mother has historically been unable to provide stable housing and admitted that “she has never been good at ‘adulting.’ ” Appellant's App. Vol. II p. 41; see Carrera v. Allen Cnty. Off. of Fam. and Child., 758 N.E.2d 592, 595 (Ind. Ct. App. 2001) (concluding that a parent's historical inability to provide housing, stability, and supervision, coupled with a present inability to do the same, supports the termination of parental rights).

[21] Moreover, Mother's participation in DCS-recommend services has been sporadic. For example, at the outset of the termination case, DCS opened and closed multiple referrals due to Mother's noncompliance or failure to schedule. The dispositional order required Mother to participate in weekly drugs screens, and as noted, in 2021, Mother completed only ten screens, all of which “were positive for fentanyl [and] meth.” Tr. Vol. II p. 87. As mentioned, in 2022, Mother had “zero engagement” with DCS. Tr. Vol. II pp. 89. While Mother reengaged in some DCS services in September of 2023 upon her release from incarceration, by the time of the termination hearing, she had not completed the recommended parenting, substance-abuse, or clinical assessments, home-based case work, therapy, “[o]r any other service that DCS may have recommended as part of the dispositional order[.]” Tr. Vol. II p. 67. The juvenile court also noted that, despite whatever services Mother had completed, she “ha[d] made no significant progress in parenting skills since Child's removal.” Appellant's App. Vol. II p. 41; see In re J.T., 742 N.E.2d 509, 512–14 (Ind. Ct. App. 2001) (reasoning that parent's failure to improve parenting skills after four years supported a conclusion that the conditions leading to child's removal would not be remedied), trans. denied.

[22] In short, Mother's arguments essentially amount to an invitation to reweigh the evidence, which we will not do. In re N.G., 51 N.E.3d at 1170. The juvenile court noted that it appears that Mother believed that her participation in the CCATS program had superseded or replaced some of her obligations through the CHINS case; however, the juvenile court explained that it had “neither condoned nor authorized such a belief, and Mother has not provided any authority requiring [the] Court to reach such a conclusion.” Appellant's App. Vol. II p. 40. We cannot say that the juvenile court erred in concluding that Mother would not remedy the conditions leading to Child's removal. In re A.B., 887 N.E.2d at 165.³

B. The totality of the evidence supports a conclusion that termination is in Child's best interests

[23] Mother argues that DCS failed to show by clear and convincing evidence that termination is in Child's best interests. In determining whether termination serves a child's best interests, courts “must look at the totality of the evidence.” Matter of Ma.H., 134 N.E.3d 41, 49 (Ind. 2019). As noted, parental rights, when necessary, must be subordinate to the children's best interests. In re A.B., 887 N.E.2d at 164. This means that juvenile courts “need not wait until the children are irreversibly harmed [․] before terminating the parent-child relationship.” In re T.F., 743 N.E.2d at 773. The totality of the evidence here demonstrates that termination is in Child's best interests.

[24] Indiana courts have long relied on the recommendations of the FCM, CASA, GAL and other service providers when considering whether “a reasonable finder of fact could conclude based on clear and convincing evidence” that “the termination is in the best interests of” a child. In re N.G., 51 N.E.3d at 1173. Here, multiple service providers have explained that termination is in Child's best interests because of Mother's “failure to complete recommended services since Child's removal” and her “failure to fulfill necessary parental obligations and responsibilities[․], as well as the Child's progress in foster care.” Appellant's App. Vol. II p. 42.

[25] Moreover, Mother has not participated in Child's medical appointments or the medical decision-making process for Child, which the juvenile court noted was “concerning[,]” given Child's special needs. Appellant's App. Vol. II p. 41. The juvenile court noted that “there is no evidence” that Mother “has taken any steps to learn about these needs or to educate” herself and prepare to “parent a child with special needs.” Appellant's App. Vol. II p. 41. In fact, Mother has not even seen Child since 2021. Perhaps most importantly, Child is “thriving in the foster home, with all their physical and emotional needs being met.” Appellant's App. Vol. II p. 41.

[26] We will not make children “wait indefinitely for their parents to work toward preservation or reunification[,]” In re E.M., 4 N.E.3d at 648, or “wait until [they] are irreversibly harmed [․] before terminating the parent-child relationship.” In re T.F., 743 N.E.2d at 773. Because “children have an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous relationships[,]” we conclude that the juvenile court's decision in this regard is not clearly erroneous. In re K.T.K., 989 N.E.2d at 1230.

C. Mother's argument that the juvenile court applied an improper standard by using Occam's Razor is harmless error

[27] Mother claims that the juvenile court's failure-to-remedy conclusion should be reversed, in part, because the juvenile court applied the wrong standard and thus erroneously found that DCS had carried its burden of proof. Specifically, Mother claims that the juvenile court's application of Occam's Razor (instead of the balancing test) to the September and October of 2023 drug tests resulted in the use of the wrong legal standard. Even assuming, arguendo, that this was the case, such error is harmless.

[28] We find an error harmless when it results in no prejudice to the substantial rights of a party. In re O.G., 159 N.E.3d 13, 18 (Ind. Ct. App. 2020). Here, the record contains ample evidence supporting the juvenile court's conclusion that Mother would not remedy the conditions leading to Child's removal from her care. The September and October of 2023 drug-test evidence is simply cumulative of other evidence in the record supporting that conclusion.

[29] The judgment of the juvenile court is affirmed.

FOOTNOTES

1.   Father does not participate in this appeal.

2.   The General Assembly amended this statute, effective July 1, 2024; however, the older version of the statute applies here.

3.   Additionally, Mother argues that DCS failed to show that the continuation of the parent-child relationship threatens Child's wellbeing. Specifically, Mother asserts that she “has corrected the problems that caused [Child's] placement.” Appellant's Br. p. 34. However, given our failure-to-remedy conclusion, we need not reach Mother's threat argument. See In re A.K., 924 N.E.2d at 220 (noting that Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, requiring only one of those elements to be satisfied).

Bradford, Judge.

Judges Crone and Tavitas concur. Crone, J., and Tavitas, J., concur.