IN RE: the Involuntary Termination of the Parent-Child Relationship of E.C. and A.C. (Minor Children) and L.M. (Mother) and M.C. (Father) (2024)

MEMORANDUM DECISION

Case Summary

[1] L.M. (Mother) and M.C. (Father) (collectively the Parents) appeal the trial court's orders involuntarily terminating their parental relationships with their minor children E.C. and A.C. (collectively the Children). On appeal, Father does not challenge any of the trial court's findings or conclusions supporting its termination order. Instead, Father argues that the trial court committed fundamental error regarding his due process right to be present at the termination hearing by denying his request to attend the hearing telephonically and subsequently holding the hearing in his absence. Mother separately appeals the termination of her parental rights to the Children on grounds that there was insufficient evidence to support the termination.

[2] We find that Father failed to challenge any of the trial court's findings or conclusions and has thus conceded that the Indiana Department of Child Services (DCS) proved by clear and convincing evidence the allegations in the petition to terminate his parental rights to the Children. We further find that the trial court did not commit fundamental error regarding Father's due process right to be present at the termination hearing by holding the hearing in his absence. We also find that there is sufficient evidence to support the termination of Mother's parental rights to the Children. Therefore, we affirm.

Facts and Procedural History

[3] Mother and Father are the parents of E.C., born in 2014, and A.C., born in 2020. The Parents first became involved with DCS in 2015, when Mother was incarcerated, Father was arrested and charged with theft, and the Parents’ home had no electricity. DCS removed E.C. from the Parents’ home but returned him to Mother's care in 2016 when she was released from jail.

[4] In 2017, DCS again became involved with the family, this time based on allegations of physical abuse in the home. E.C. had bruises, and DCS removed him from Mother's care. E.C. was reunified with Mother in 2019.

[5] In 2020, DCS became involved with the family yet again, this time due to allegations that the Parents were using drugs and engaging in domestic violence. This case was open for a year and then closed upon the Children's reunification with the Parents around May 2021. However, in September 2020, before the case closed, Mother was charged in Henry County with one count of level 3 felony neglect of a dependent resulting in serious bodily injury, one count of level 6 felony neglect of a dependent, and one count of level 6 felony unlawful possession of a syringe (the Henry County Neglect Case). In May 2022, Mother pled guilty to one count of level 5 felony neglect of a dependent, and the trial court imposed a five-year sentence. The court ordered Mother to serve two years in community corrections on home detention and the remaining three years on formal probation.

[6] In July 2021, DCS received a report alleging that the Children were the victims of neglect. The allegation was based on an incident in which Mother, who had a history of drug use, had been found passed out on the front porch and appeared to be “under the influence” of a substance. Ex. Vol. 3 at 21. When law enforcement officers arrived with activated lights and sirens, Mother did not wake up, and the officers had to complete “a sternum rub for Mother to wake up.” Father's Appealed Order at 15.¹

[7] In August 2021, DCS investigated a report that the Children had sores on their faces and bodies and that Mother had not taken the Children for medical treatment. DCS removed Children from the home. The Parents agreed to participate in an informal adjustment (IA), and the Children were reunified with the Parents.

[8] The Parents did not progress under the IA. DCS arranged for the Parents to participate in support services, but they struggled to attend them. In September 2021, Father was charged with level 6 felony intimidation for communicating a threat to a DCS worker (the Intimidation Case). He was convicted, received a suspended sentence, and was placed on probation. On a cold day in December, Mother went to a store and left A.C. in the car unattended for approximately ten minutes with the car window rolled down. A.C. was crying, and law enforcement was called to the scene. Also during the IA, the Parents failed drug screens, and Father became incarcerated for operating a vehicle while intoxicated (OWI).

[9] On February 18, 2022, DCS filed its petitions alleging that the Children were children in need of services (CHINS) based on the Parents’ medical neglect of the Children, domestic violence, and drug use. The Children were removed from the Parents’ care on February 23. By that time, the Parents were no longer in a relationship, and Mother was living with her boyfriend, J.R. (Boyfriend).² DCS amended the CHINS petitions in March.

[10] The trial court adjudicated the Children CHINS on April 22 as to Father and on May 11 as to Mother. On June 17, the trial court entered a dispositional order requiring the Parents to, in relevant part, contact the DCS family case manager (FCM) every week to allow the FCM to monitor compliance with the CHINS matter; keep all appointments with service providers, DCS, or the court appointed special advocate (CASA), or give advance notice and good cause for a missed appointment; enroll in recommended programs and services within thirty days of the recommendation and participate in the programs/services as scheduled; maintain suitable housing; secure and maintain a legal source of income; not use illegal substances or consume any alcohol; obey the law; complete a parenting assessment, a substance abuse assessment, and a psychological evaluation and follow any recommendations from the assessments/evaluations; submit to random drug screens; and attend scheduled visits with the Children. The court also ordered Father to follow all the terms of his probation and ordered DCS to continue wardship over the Children. The Parents already had services in place through the IA, but DCS again referred the Parents for services. The Children's permanency plan was for reunification.

[11] Initially, Mother complied with the trial court's dispositional order and cooperated with DCS. Father did not. In April 2022, Father participated in substance abuse treatment at Fairbanks, but he “didn't make it halfway through” before he was “kicked out” of the program for attempting to “start a relationship” with another program participant. Tr. Vol. 2 at 58. He returned to Fairbanks in October, completed the program, and moved to a sober living program. However, Father was “kicked out” of the sober living program for the unauthorized use of suboxone. Id.

[12] During the CHINS proceedings, Father moved multiple times between different counties. Each time he moved, Carrie Mathews, the FCM assigned to work with the family, made new referrals for services. However, Father failed to consistently participate in the services, and he continued to use drugs and alcohol. Father failed some of his drug screens, testing positive for cocaine, methamphetamine, amphetamine, suboxone, and fentanyl.

[13] In September 2023, Father was arrested in Madison County for OWI. He pled guilty to the charge in October. Because the new charge was a violation of Father's previously imposed probation in the Intimidation Case, the probation department filed a petition to revoke Father's probation. Father also violated his probation by having positive drug screens, which resulted in the filing of another probation violation petition. In December, Father was arrested for a probation violation, and in January 2024, he was arrested for violating community corrections. Father used fake urine during a drug test in the Madison County OWI case, and on January 17, 2024, he was charged with misdemeanor offenses, which precipitated the filing of another probation violation petition.

[14] Regarding visitation with the Children, Father was inconsistent and often canceled the visitations. He told his service providers that he was a “perfect parent” and that he did not need the services. Father's Appealed Order at 18. However, Father's parenting skills did not improve. He favored his daughter, A.C., over his son, E.C., and struggled to bond with and appropriately discipline E.C. when E.C. exhibited trauma-based behavior. During the CHINS proceedings, Father was unable to obtain stable housing, and he struggled to find full-time employment.

[15] Meanwhile, in July 2022, Mother was engaging in her court-ordered services and “doing pretty well[.]” Tr. Vol. 2 at 38. Mother participated in trauma therapy, completed a substance abuse assessment, met weekly with her case manager, and participated in a parenting assessment and a parenting program. Mother attended a suboxone treatment center that provided medication management. And although she initially failed to submit to weekly random drug screens, she later submitted to the screens on a nearly regular basis.

[16] In September 2022, the Children began a trial home visit with Mother. On September 25, however, Mother relapsed and tested positive for methamphetamine because she became “stressed about the [Children]” returning to her care. Id. at 40. Aside from that setback, Mother “made great progress” with her services. Father's Appealed Order at 10. And in the first week of December, DCS reduced Mother's participation in her services from five days a week to two days a week. The Children remained in Mother's care.

[17] However, by mid-December, “everything fell apart[.]” Tr. Vol. 2 at 40. A.C. became covered in bruises and was taken to the emergency room at a local hospital. Mother and Boyfriend were asked to leave the hospital because of “how they were acting toward [the] FCM [who was at the hospital] that night[.]” Id. at 39. Mother and Boyfriend then went to the hospital parking lot and began breaking into and stealing items from cars. They were arrested, and Mother was charged with theft (the Madison County Theft Case). Mother was released from jail and assigned a court date.

[18] A few days later, Mother was caught stealing packages from residential porches, which resulted in Mother being arrested and charged with level 6 felony theft with a prior conviction and level 6 felony unlawful possession of a legend drug (the Henry County Theft Case). Because Mother was still serving time on home detention for the Henry County Neglect Case when she committed the new crimes in the Henry County Theft Case, she was also arrested for violating the terms of her home detention. DCS removed the Children from Mother's care and eventually placed them in foster care. In February 2023, the Children's permanency plan for reunification was modified to include a concurrent plan for adoption. The Children did not return to either parent's home.

[19] Mother remained in the Henry County Jail until May 2023. While incarcerated, Mother was unable to participate in her court-ordered services because the jail did not allow it. On May 23, Mother entered into a plea agreement for the Henry County Theft Case and the violations of her home-detention commitment in the Henry County Neglect Case. The trial court sentenced her to one year for the theft case and ordered her to serve the five-year suspended sentence she had received in the neglect case. The sentences were to be served consecutively, for an aggregate term of six years. Mother was transferred to the Rockville Correctional Facility to serve the time.

[20] On August 29, 2023, DCS filed petitions for the involuntary termination of the Parents’ relationships with the Children. In October, at the request of CASA Susan Stamper and other service providers, the trial court ordered the Parents’ visitation with the Children to cease because the visits were determined to be detrimental to the Children's well-being.

[21] On November 8, 2023, the trial court held a pretrial hearing. Father attended the hearing telephonically, and the court informed him that the termination factfinding hearing would take place on February 20, 2024. At some point thereafter, Father entered the Mockingbird Hill Recovery Center residential treatment program. He sent a text message to FCM Mathews, stating that “he had to go to rehab or he was gonna go to jail for two ․ years.” Id. at 62. On February 13, 2024, Father filed a motion, asking the court to allow him to attend the termination hearing telephonically from the treatment facility. Father did not include in his motion any information about being required by community corrections to enter the facility or that his failure to do so would result in incarceration. DCS objected to Father's request to appear telephonically, and on February 14, the trial court denied the motion.

[22] The termination hearing took place on February 20, as scheduled, and Father did not appear. At the beginning of the hearing, Father's counsel told the court that counsel had “some verification” that Father was in a residential treatment facility. Id. at 28. The court proceeded with the termination hearing in Father's absence, noting that Father had been notified of the hearing date.

[23] The evidence presented at the termination hearing included testimony by the service providers, Father's probation officer, E.C.’s therapist, CASA Stamper, and FCM Mathews. Mother read a letter into evidence. Father's attorney provided representation in Father's absence and cross-examined the witnesses.

[24] The trial court learned that Father did not consistently participate in and complete his court-ordered services. Father often canceled appointments with the service providers and, at times, failed to show up for the appointments. Father struggled to discipline the Children, failed to effectively parent E.C. when the child exhibited trauma-based behaviors, and refused to accept direction regarding improving his parenting skills. Father continued to test positive for illegal substances and abuse alcohol. Father was unable to secure stable housing and struggled to find full-time employment. At the time of the termination hearing, Father had an active warrant for his arrest for failure to appear in the Intimidation Case and pending criminal cases involving OWI and probation violations.

[25] Regarding Mother, the court learned that she had been incarcerated since December 2022. At the time of the termination hearing, Mother was serving her six-year prison sentence. Due to her incarceration, she had not been able to participate in services to progress toward reunification with the Children or address her substance abuse issues. And she was unable to provide food, clothing, housing, medical care, or supervision for the Children. The court allowed Mother to read a letter into evidence. She told the court that she took “full responsibility for the actions” that led to her incarceration; she had engaged in grief and domestic violence classes in prison and received “numerous certificates”; she was on a waiting list to participate in the Recovery While Incarcerated program and parenting classes; and she “continue[d] to make positive steps toward [her] recovery.” Id. at 123. She told the court that she had recently experienced a family tragedy and that she did not “know how to deal with the trauma.” Id. She stated that she had “signed [her] first review for ․ a time cut” of her sentence, and she asked the court to allow her to have contact with the Children. Id.

[26] At the time of the termination hearing, the Children had been removed from the Parents’ care for twenty-one of the last twenty-four months. E.C. had been in the same foster home for one year, and A.C. had been in the home for ten months. Shaunna Stamm, a therapist with Kids in Difficult Situations, began working with E.C. in September 2023. She testified that E.C. was exhibiting “challenging behaviors” that included “yelling, screaming, ․ being oppositional [and] defiant to directions,” running away from home, and destruction of property. Id. at 117. Stamm told the court that E.C. had suffered neglect from Mother and trauma due to Father's “arguing, ․ drinking, and ․ fighting.” Id. at 118. She told the court that E.C.’s behavior improved after visitation with the Parents stopped.

[27] CASA Stamper testified that she believed that it was in the Children's best interests to be adopted by their foster parents. She answered in the affirmative when counsel for DCS asked her if she was requesting that the trial court terminate the Parents’ parental rights to the Children. FCM Mathews answered in the affirmative when asked if “DCS [was] requesting an order terminating” the Parent's parental rights to the Children, and she testified that the conditions that led to the Children's removal from the Parents’ care were not likely to be remedied. Id. at 49. She explained that Mother had been sentenced to six years in prison, “so that puts the kids without a home with her. [Father] currently has a warrant for his arrest. He's been failing drug screens. He's not attending any services ․. [H]e doesn't have any kind of stable living at this time.” Id. at 48.

[28] On March 4, 2024, the trial court issued substantially similar orders terminating the parent-child relationships between the Parents and the Children. The trial court found that the Children had been removed from the Parents for at least six months under a dispositional decree and had been under the supervision of DCS for at least fifteen of the last twenty-two months, there is a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside the Parents’ home will not be remedied, continuation of the parent-child relationship poses a threat to the Children's well-being, termination of the Parents’ parental rights is in the Children's best interests, and there is a satisfactory plan for the Children's care and treatment, which is adoption. Both Mother and Father now appeal.

Discussion and Decision

[29] We recognize that “[a] parent's interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty interests.’ ” In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005)). “[A]lthough parental rights are of a constitutional dimension, the law provides for the termination of these rights when the parents are unable or unwilling to meet their parental responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008). Involuntary termination of parental rights is the most extreme sanction a court can impose, and therefore “termination is intended as a last resort, available only when all other reasonable efforts have failed.” Id.

[30] “We have long had a highly deferential standard of review in cases involving the termination of parental rights.” In re C.A., 15 N.E.3d 85, 92 (Ind. Ct. App. 2014).

In considering whether the termination of parental rights is appropriate, we do not reweigh the evidence or judge witness credibility. We consider only the evidence and any reasonable inferences therefrom that support the judgment, and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Where a trial court has entered findings of fact and conclusions of law, we will not set aside the trial court's findings or judgment unless clearly erroneous. [Ind. Trial Rule 52(A)]. In evaluating whether the trial court's decision to terminate parental rights is clearly erroneous, we review the trial court's judgment to determine whether the evidence clearly and convincingly supports the findings and the findings clearly and convincingly support the judgment.

In re K.T.K., 989 N.E.2d 1225, 1229-30 (Ind. 2013) (citations and quotation marks omitted). In addition, we note that unchallenged findings of fact are accepted as true by this Court. In re S.S., 120 N.E.3d 605, 609 n.2 (Ind. Ct. App. 2019). As such, if the unchallenged findings clearly and convincingly support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct. App. 2015), trans. denied; T.B. v. Ind. Dep't of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied.

[31] A petition to terminate a parent-child relationship must allege, 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).³ DCS must prove each element by “clear and convincing evidence.” R.S., 56 N.E.3d at 629; Ind. Code § 31-37-14-2. If the trial court finds that the allegations in the petition are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

Section 1 – Father has conceded that DCS proved by clear and convincing evidence the allegations in the petition to terminate his parental rights to the Children.

[32] As an initial matter, we note that Father does not challenge the trial court's findings of fact and conclusions thereon as clearly erroneous. Father has thereby waived any arguments relating to the unchallenged findings. See In re S.S., 120 N.E.3d at 609 n.2 (explaining that this Court will accept unchallenged trial court findings as true).

[33] The trial court's findings read, in relevant part:

10. Father has been arrested several times in the recent past and currently has an active warrant for his arrest in [a] Henry County criminal case.

Father has not participated in services to promote his reunification with the Children. He has not participated in services to remedy his alcohol abuse issues and the criminal issues for which he [w]as incarcerated and his pending criminal cases, one of which has an active warrant.

11. On or about October 26, 2023, the Court made an Order to cease visits with ․ Father and the Children, due to the visits being detrimental to the Children.

12. Mother and Father have been given numerous opportunities to participate in services and enhance their ability to parent the Children and haven't completed services at this time.․ Father currently has an active warrant and is awaiting his pending criminal cases/sentences for his pending criminal charges. Currently, neither parent is able to provide food, clothing, shelter, medical care or supervision for the Children.

13. Mother and Father have continued to test positive for illicit substances and alcohol throughout the cases.

14. DCS’ plan for [the] Children is that they be adopted, this plan is satisfactory for [the] Children's care and treatment and an adoptive family has been identified.

15. The Children's CASA/GAL is supportive of the plan of termination of parental rights and believes it is in the Children's best interests to be adopted.

16. DCS believes it is in the best interests of the Children to be adopted by the Children's current placement ․ because it will allow the Children to achieve much needed permanency and be adopted by their current foster parents.

Father's Appealed Order at 21. Father does not challenge the court's findings. By failing to do so, Father has conceded that DCS proved by clear and convincing evidence the allegations in the petition to terminate his parental rights to the Children.

[34] The trial court ultimately concluded that the Children had been removed from Father for at least six months under a dispositional decree and had been under the supervision of DCS for at least fifteen of the last twenty-two months, there was a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside Father's home would not be remedied, continuation of the parent-child relationship posed a threat to the Children's well-being, termination of Father's parental rights was in the Children's best interests, and there was a satisfactory plan for the Children's care and treatment, which was adoption. Father has not established any clear error in the court's conclusions.

Section 2 – Father has failed to establish that the trial court committed fundamental error regarding his due process right to be present at the termination hearing by denying his request to attend the hearing telephonically and holding the hearing in his absence.

[35] Father contends that the trial court's decision to deny his request to attend the termination hearing by telephone and hold the termination hearing in his absence violated his due process right to be present at the hearing. Father acknowledges that he did not raise a due process argument at the trial court level. Thus, the issue is waived. See In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (holding that a constitutional claim, including a claimed violation of due process rights, may be waived when it is raised for the first time on appeal). Waiver notwithstanding, Father contends that the alleged due process violation constituted fundamental error.

[36] On rare occasions, we will analyze an issue under the fundamental error doctrine to examine an otherwise procedurally defaulted claim. Matter of Eq. W., 124 N.E.3d 1201, 1215 (Ind. 2019). Review is extremely narrow and “available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and [the] violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.” Id. Even an error that is prejudicial or that implicates a constitutional right is not itself sufficient to constitute fundamental error. Id. A finding of fundamental error in these circumstances “essentially means that the trial judge erred ․ by not acting when he or she should have, even without being spurred to action by a timely objection.” Id.

[37] Father argues that by denying his request to appear telephonically, a request he had made one week before the hearing took place, the trial court violated his due process right to be present at the termination hearing. Father maintains that the day the hearing was held, he was “in a residential treatment facility through community corrections and was likely not permitted to leave the facility.” Father's Br. at 7. Father claims that the denial of his request “resulted in [his] not being able to attend the hearing at all[,]” which, according to Father, “was a violation of due process.” Id.

[38] Parents do not have a constitutional right to be physically present at a final termination hearing. In re C.G., 954 N.E.2d 910, 921 (Ind. 2011). However, under Indiana Code Section 31-35-2-6.5(e), which governs hearings for petitions to terminate a parent-child relationship, the court shall provide a parent “an opportunity to be heard and make recommendations to the court at the hearing.” Furthermore, Indiana Code Section 31-32-2-3(b) provides that in proceedings to terminate the parent-child relationship, “[a] parent, guardian, or custodian is entitled: (1) to cross-examine witnesses; (2) to obtain witnesses or tangible evidence by compulsory process; and (3) to introduce evidence on behalf of the parent, guardian, or custodian.”

[39] In addition to these statutory provisions, the Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits state action that deprives a person of life, liberty, or property without a fair proceeding. In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003), trans. denied. When the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process. Id.

[40] Due process has never been defined, but the phrase embodies a requirement of fundamental fairness. In re D.P., 27 N.E.3d 1162, 1166 (Ind. Ct. App. 2015) (citing C.G., 954 N.E.2d at 917) (quotations omitted). The United States Supreme Court has stated, “ ‘[T]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.’ ” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). The process due in a termination of parental rights proceeding turns on the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. Id. Both the State and Father have substantial interests affected by the proceeding, so we focus on the risk of error created by the trial court's actions.

[41] To support his due-process argument, Father relies on In re K.W., 12 N.E.3d 241 (Ind. 2014). In K.W., the mother was incarcerated and sought a continuance of her termination factfinding proceedings until her release in approximately two weeks. The trial court denied the mother's motion for a continuance and conducted the termination hearing in her absence, which resulted in the termination of her parental rights to K.W. The Indiana Supreme Court reversed the termination, concluding that the trial court had abused its discretion by denying mother's motion for a continuance when she was incarcerated and her release from prison was imminent. Id. at 249.

[42] Father argues that, unlike the mother in K.W., who asked for a continuance that would have resulted in a delay of the proceedings, “he only asked that he be allowed to appear [at the hearing] by telephone[.]” Father's Br. at 11. Father further argues that even though he was not incarcerated when the hearing took place, his placement at the residential treatment facility was “arranged by community corrections,” which “suggest[s]” that the placement might not have been “entirely voluntary.” Id. Father claims that, “had he left the facility, he may have been withdrawn from the program and risked having his community corrections placement revoked.” Id.

[43] We are unpersuaded by Father's arguments. And we find that the risk of error created by the trial court holding the termination in Father's absence was minimal at best, especially in light of the fact that Father did not inform the court of, or provide any supporting evidence for, his claim that he was at the treatment facility at the behest of community corrections and would risk incarceration if he left the facility. More importantly, Father was represented by counsel who was present at the termination hearing, which provided due process protections to Father. During the hearing, counsel was able to cross-examine the witnesses presented by DCS and had the opportunity to present and object to the admission of evidence.

[44] Therefore, after balancing the substantial interest of Father with that of the State and in light of the minimal risk of error created by the challenged procedure, we conclude that the trial court's denial of Father's request to appear at the termination hearing telephonically and its decision to proceed with the hearing in Father's absence did not rise to the level of a due process violation or amount to fundamental error. Accordingly, we affirm the court's order terminating Father's parental rights to the Children.

[45] We now address Mother's claim that the evidence was insufficient to support the termination of her parental rights to the Children.

Section 3 – The trial court's conclusion that there is a reasonable probability of unchanged conditions is not clearly erroneous.

[46] Mother contends that DCS failed to prove that there is a reasonable probability that the conditions that resulted in the Children's removal and continued placement outside of her home will not be remedied. In determining whether such a probability is reasonable, we engage in a two-step analysis. K.T.K., 989 N.E.2d at 1231. First, “we must ascertain what conditions led to [the Children's] placement and retention in foster care.” Id. Second, “we ‘determine whether there is a reasonable probability that those conditions will not be remedied.’ ” Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)). In the second step, the trial court must judge a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions, and balancing a parent's recent improvements against “habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation.” Id.

[47] “Where there are only temporary improvements and the pattern of conduct shows no overall progress, the court might reasonably find that under the circumstances, the problematic situation will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). In addition, a trial court may consider services offered by DCS and the parent's response to those services as evidence of whether conditions will be remedied. In re A.D.S., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. DCS “is not required to provide evidence ruling out all possibilities of change; rather, it need only establish ‘that there is a reasonable probability that the parent's behavior will not change.’ ” Id. (quoting In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007)).

[48] Here, the trial court found that the condition that led to the Children's initial removal from Mother's home was “due to Mother being passed out on the front porch and when law enforcement arrived with lights and sirens, Mother did not wake up.” Father's Appealed Order at 15. The Children were eventually returned to Mother's care for a trial home visit and remained in her care even after she tested positive for methamphetamine. However, the trial court further found that Mother had been caught and arrested for stealing items out of cars parked in a hospital parking lot while A.C. was being treated in the emergency room for bruises. And Mother was later caught and arrested for stealing items from residential porches. The incidents resulted in the Children again being removed from Mother's home, and the Children never returned.

[49] The court also found that Mother continued to test positive for illegal substances and alcohol while the CHINS and termination proceedings were pending, and Mother's visitation with the Children was stopped by court order because the visits were “detrimental to the Children.” Id. at 21. The court further found that Mother had been “given numerous opportunities to participate in services and enhance [her] ability to parent the Children” but had not done so. Id. The court found that Mother had been incarcerated since December 2022 and would remain in prison for six years. The court also found that, “since being incarcerated[,]” Mother had failed to participate in services “to promote her reunification with the Children [and] ․ remedy her substance abuse issues and [her] criminal” matters. Id. Mother does not challenge these findings.

[50] While Mother is to be commended for completing her parenting assessment and participating in therapy, parenting and case management programs, and visitation with the Children, the unchallenged findings amply support the trial court's conclusion that there is a reasonable probability that Mother's use of illegal substances and her propensity to commit crimes are unlikely to be remedied. Thus, the trial court's conclusion is not clearly erroneous.⁴

Section 4 – The trial court's conclusion that termination is in the Children's best interests is not clearly erroneous.

[51] Mother also challenges the trial court's conclusion that termination of the parent-child relationship is in the Children's best interests. Mother specifically asserts that she made “significant progress” with the Children during the trial home visit and that, during that time, she was able to supervise, feed, and clothe the Children and participate in a “significant number of services.” Mother's Br. at 14. Mother contends that while serving her six-year sentence, she has participated in several programs, and she has been considered for participation in the correctional facility's Recovery While Incarcerated program.

[52] To determine whether termination is in a child's best interests, the trial court must look to the totality of the evidence. A.D.S., 987 N.E.2d at 1158. “[C]hildren cannot wait indefinitely for their parents to work toward preservation or reunification—and courts ‘need not wait until the child is irreversibly harmed such that the child's physical, mental, and social development is permanently impaired before terminating the parent-child relationship.’ ” In re E.M., 4 N.E.3d 636, 648 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1235). Also, “[p]ermanency is a central consideration in determining the best interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “[W]e have previously held that the recommendation by both the case manager and 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., 987 N.E.2d at 1158-59.

[53] Here, FCM Mathews asked the court to terminate Mother's parental rights, citing Mother's current incarceration and that Mother was not likely to remedy the conditions that led to the Children's removal from her home. CASA Stamper testified that it was in the Children's best interests to be adopted by their foster parents, and she asked the court to terminate Mother's parental rights. The trial court found that CASA Stamper was “supportive of the plan of termination of [the] parental rights[.]” Father's Appealed Order (M.C.) at 21.

[54] The FCM's and CASA's testimony in support of termination, combined with the clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the Children's removal from or reasons for placement outside Mother's home will not be remedied, is sufficient to support the trial court's conclusion that termination is in the Children's best interests. See A.D.S., 987 N.E.2d at 1158-59. Accordingly, the trial court did not clearly err in concluding that termination of Mother's parental rights is in the Children's best interests. Based on the foregoing, we affirm the court's order terminating Mother's parental rights to the Children.

[55] Affirmed.

FOOTNOTES

1.   We cite to the trial court's order terminating Father's parental rights to the Children but note that the trial court's termination orders for Mother and Father read substantially the same.

2.   Boyfriend is not a party to the termination proceeding or this appeal.

3.   Our legislature made significant changes to Indiana Code Section 31-35-2-4 in 2024. DCS filed its petition in 2023, under the prior version of the statute.

4.   Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. Where, as here, DCS has met its burden as to remediation of conditions pursuant to Indiana Code Section 31-35-2-4(b)(2)(B)(i), “we need not address whether the State has proven its allegations under Section 31-35-2-4(b)(2)(B)(ii).” K.T.K., 989 N.E.2d at 1234 (citing In re W.B., 772 N.E.2d 522, 531 n.2 (Ind. Ct. App. 2002)). Accordingly, we do not address Mother's contention that she does not pose a threat to the well-being of the Children.

Crone, Senior Judge.

Chief Judge Altice and Judge Vaidik concur. Altice, C.J., and Vaidik, J., concur.