IN RE: the Termination of the Parent-Child Relationship of M.W. (Minor Child) and P.W. (Mother) (2025)

MEMORANDUM DECISION

Case Summary

[1] P.W. (“Mother”) appeals the termination of her parental rights to one of her children. We affirm.

Facts and Procedural History

[2] Mother is the biological mother of M.W. (“Child”), born in October 2021. Paternity for Child was never established, but the parental rights of Child's alleged father and any unknown fathers were terminated through publication in May 2024. Mother also has two older children, C.P. and E.P., and one younger child, L.A., who was born in January 2023.

[3] Mother has a long history of Department of Child Services (DCS) involvement, beginning in September 2017 when C.P. was detained because Mother and C.P.’s father were using illegal substances and were both arrested. Two years later, Mother was charged with possession of a narcotic drug in Warrick County. Then in February 2020, after Mother was arrested for new drug-related offenses, C.P. was detained again and eventually adjudicated a child in need of services (CHINS). Around the same time, E.P. was born drug exposed and suffered from drug withdrawal. Mother admitted using heroin until the day she delivered E.P., and E.P. was also detained and adjudicated a CHINS.

[4] When Child was born in October 2021, he and Mother both tested positive for opiates. Child experienced withdrawal symptoms and had to be placed in the NICU. DCS detained Child at the hospital two days after his birth and, the next day, filed a petition alleging Child was a CHINS. After Child was released from the NICU, DCS placed him with his maternal grandparents (Mother's mother and stepfather), where he has since remained. In December, the trial court found Child to be a CHINS. That same month, Mother consented to the adoption of C.P. and E.P. by the maternal grandparents.

[5] In January 2022, the trial court issued a dispositional order requiring Mother to, among other things, complete a substance-abuse assessment and follow all treatment recommendations, refrain from using drugs and alcohol, submit to random drug screens, and obey the law. But two months later, Mother was arrested for possession of a narcotic drug and possession of paraphernalia. Mother violated her bond conditions twice by testing positive for illegal drugs and was taken into custody in June. From November 2021 to July 2022, she missed twenty-seven random drug screens. Mother remained in jail until August, when she pled guilty to Level 6 felony possession of a narcotic drug and Class A misdemeanor possession of paraphernalia, and her sentence was stayed pending completion of the Forensic Diversion Program through Vanderburgh County Drug Treatment Court.

[6] Upon her release from jail, Mother moved into transitional housing at the YWCA. She underwent a substance-abuse assessment in August 2022, after which she completed substance-abuse treatment at Southwestern Behavioral Healthcare. Mother had supervised visitation with Child until December, when they transitioned to monitored visits. After L.A.’s birth in January 2023, he lived with Mother at the YWCA. That March, Mother was granted overnight visits with Child two nights a week. But DCS switched her back to supervised visits after the YWCA reported that she wasn't participating in treatment and was spending time with her husband, who was actively using drugs.

[7] In May 2023, Mother relapsed and tested positive for fentanyl. The probation department in her possession case filed a petition to revoke, and Mother was removed from Drug Treatment Court. Additionally, DCS detained L.A. and filed a petition alleging he was a CHINS. Mother was incarcerated until June, when she admitted to the violation and was ordered to serve her previously stayed two-and-a-half-year sentence on therapeutic work release. But in July, probation filed another petition to revoke because Mother was leaving work early and not returning directly to the work-release facility. As a result, Mother was ordered to execute her remaining sentence and was incarcerated again from July 2023 to February 2024. At the end of July, L.A. was adjudicated a CHINS. While in jail, Mother had virtual visits with Child.

[8] In January 2024, DCS petitioned to terminate Mother's parental rights to Child. Mother was released from jail to house arrest in February and moved in with her father. At the request of Child's court-appointed special advocate (CASA), Robert Hulsey, the trial court suspended Mother's visitation pending the fact-finding hearing. In March, Mother began attending individual therapy sessions at Southwestern “for probation” in her possession case and “related to [L.A.’s] CHINS case.” Tr. pp. 34-35. Throughout that month, she also attended weekly AA and NA meetings.

[9] The fact-finding hearing was held in April. Mother testified that she was employed full time, was living in an apartment with her father, and had two weeks left on house arrest in her possession case. She explained that she'd stopped attending AA and NA because it was “hard to maneuver it around” her house-arrest and work schedules. Id. at 35. Mother asserted that the last time she'd used drugs was when she relapsed in May 2023. She also noted that she was awaiting disposition in the Warrick County case and had a court date in six weeks.¹ Additionally, the CHINS case for L.A. was still open.

[10] Family Case Manager (FCM) Shelby Jones testified that Mother does not have a bond with Child because she hasn't seen him in person since May 2023. FCM Brianna Eiras, who took over for FCM Jones in October 2023, opined that termination is in Child's best interests and that it would be traumatic for Child to restart visits or be removed from placement with his grandparents, which he considers his home. CASA Hulsey similarly testified that termination is in Child's best interests because Child deserves permanency and Mother “has had her chance and she has failed multiple times.” Id. at 123.

[11] In July, the trial court terminated Mother's parental rights to Child.

[12] Mother now appeals.

Discussion and Decision

[13] Mother argues the evidence presented at the fact-finding hearing is insufficient to prove the statutory requirements for termination. When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable inferences most favorable to the judgment of the trial court. Id. When a trial court has entered findings of fact and conclusions of law, we will not set aside the court's findings or judgment unless clearly erroneous. Id. To determine whether a judgment terminating parental rights is clearly erroneous, we review whether the evidence supports the trial court's findings and whether the findings support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).

[14] A petition to terminate parental rights 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) (version in effect through Mar. 10, 2024).² DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K., 989 N.E.2d at 1231. If the trial court finds the allegations are true, the court “shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a).

I. The error in the trial court's findings of fact is not fatal to the judgment

[15] Mother challenges several of the trial court's findings of fact. Findings are clearly erroneous only when the record contains no evidence to support them, either directly or by inference. In re A.D.S., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.

[16] Mother first challenges Finding B(8), which states, in relevant part: “At disposition ․ , the Court ordered mother to ․ complete a mental health evaluation and follow all recommendations ․”³ Appellant's App. Vol. II p. 42. DCS concedes that the CHINS dispositional order did not require Mother to complete a mental-health evaluation. See Appellee's Br. p. 15; see also Ex. C. Accordingly, Finding B(8) is erroneous. But even an erroneous finding of fact will not prove fatal to the judgment, provided there are at least some valid findings to support the trial court's conclusions. A.F. v. Marion Cnty. Off. of Fam. & Child., 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. As explained further below, because the trial court's valid findings of fact, together with the unchallenged findings, support its conclusions, Finding B(8) is not fatal to the judgment.

[17] Mother next challenges the following portion of Finding C(2): “At trial, Mother admitted that she did not recall much between 2017 to 2022 because of her heavy illegal drug use.” Appellant's App. Vol. II p. 43. Mother points out that she “actually testified from 2017 to 2020 that she ‘didn't work very much.’ ” Appellant's Br. p. 17 (citing Tr. pp. 25-27). While this is true, Mother also testified that she “can't remember the last job [she] had before” August 2022 because she was “on a lot of drugs” and that 2022 was “approximately when she got clean for the first time in a long time.” Tr. pp. 25-26. Additionally, the most recent employment Mother could remember before her August 2022 job was a job she held from 2016 to 2017. This testimony supports Finding C(2).

[18] Mother also purports to challenge Findings C(6)-(9), which outline her criminal history before Child was born. But despite stating that “these findings are not supported by the evidence,” Mother is really challenging the weight the trial court gave to her criminal history—her only argument is that “some of the charges the court considered occurred more than 10 years before the Child's birth.” Appellant's Br. p. 17. In reviewing whether the evidence supports the trial court's findings of fact, we do not reweigh the evidence. See In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). And in any event, our case law is clear that the trial court may consider a parent's prior criminal history in determining whether the statutory requirements for termination have been met. See, e.g., A.D.S., 987 N.E.2d at 1157. Findings C(6)-(9) are not erroneous.

[19] Finally, Mother challenges the following portion of Finding C(11): “At the time of trial, mother reported living with her father on house arrest.”⁴ Appellant's App. Vol. II p. 45. Mother claims this finding “is not supported by the evidence” because it “ignores the fact at the time of trial Mother had only two weeks left on house arrest before her case would be closed.” Appellant's Br. p. 18. But Mother's own testimony at the fact-finding hearing supports this finding—she testified several times that she was living with her father and that she was on house arrest in her 2022 possession case. See Tr. pp. 20, 35, 54, 59. Also, the trial court took judicial notice of this case, see id. at 33-34, so the end date of Mother's house arrest was part of the record. Finding C(11) is not erroneous.

II. The trial court did not err in concluding the statutory requirements for termination were satisfied

A. Conditions Remedied

[20] Mother next challenges the trial court's determination that there is a reasonable probability the conditions resulting in Child's removal and continued placement outside the home will not be remedied. In making such a determination, the trial court engages in a two-step analysis: first, the court identifies what conditions led to the child's placement and retention outside the home, and then it determines whether there is a reasonable probability those conditions will not be remedied. K.T.K., 989 N.E.2d at 1231. This second step requires the court to judge a parent's fitness at the time of the termination proceeding, considering evidence of changed conditions and balancing any recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. E.M., 4 N.E.3d at 643. “We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination.” Id.

[21] Child was removed from Mother at birth because he tested positive for opiates, and he remained outside Mother's care due to her continued substance abuse and criminal activity. Mother picked up a new criminal case in April 2022, two months after the CHINS court issued its dispositional order. In that case, she violated the conditions of her bond by testing positive for illegal drugs twice, had multiple petitions to revoke filed, was removed from Drug Treatment Court, and had several stints of incarceration due to her violations. Despite the dispositional order's requirement that she submit to random drug screens, Mother missed twenty-seven screens from November 2021 to July 2022. Though visitation with Child was going well while Mother was at the YWCA, DCS had to switch Mother back to supervised visits because she wasn't participating in treatment and was spending time with her husband, who was using drugs. After Mother relapsed in May 2023, she was placed on work release in the 2022 criminal case, but she violated the terms of her work release and was incarcerated from July 2023 to February 2024. Though she began individual therapy and AA and NA meetings in March 2024, she testified that she was attending therapy in connection with her probation and L.A.’s CHINS case, and she stopped attending AA and NA because it was “hard to maneuver it around” her house-arrest and work schedules. And Mother already completed substance-abuse treatment once before in August 2022, yet she relapsed and ended up back in jail. See In re Ma.H., 134 N.E.3d 41, 50 (Ind. 2019) (“[S]imply going through the motions of receiving services alone is not sufficient if the services do not result in the needed change[.]”), reh'g denied.

[22] Mother attempts to liken this case to In re Ma.J., 972 N.E.2d 394 (Ind. Ct. App. 2012), but that case is easily distinguishable. There, we reversed the trial court's termination of the mother's parental rights, finding that she had “eight months of solid progress in each area of concern.” Id. at 396. We expressly noted that “this is not a case where the parent's progress has been inconsistent or last-minute.” Id. at 404. Here, by contrast, Mother made little to no progress since the filing of the CHINS petition in October 2021 until she was released from jail in February 2024, just two months before the fact-finding hearing. Though she'd been sober for over ten months by the hearing, she was incarcerated for six of those months and was still on house arrest at the time of the hearing. The trial court was within its discretion to give more weight to Mother's “habitual patterns of conduct in failing to remain drug-free” than to her more recent sobriety and engagement in services. In re A.J., 881 N.E.2d 706, 716 (Ind Ct. App. 2008), trans. denied; see also E.M., 4 N.E.3d at 643 (“Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents’ past behavior is the best predictor of their future behavior.”). The evidence supports the court's conclusion that there is a reasonable probability Mother will not remedy the conditions that resulted in Child's removal and continued placement outside the home.⁵

B. Best Interests

[23] Mother also challenges the trial court's conclusion that termination is in Child's best interests. In determining whether termination is in the best interests of a child, the trial court must look at the totality of the evidence and subordinate the parent's interests to those of the child. Ma.H., 134 N.E.3d at 49. Central among these interests is the child's need for permanency, as “children cannot wait indefinitely for their parents to work toward preservation or reunification.” Id. We have 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.

[24] Here, FCM Eiras and CASA Hulsey both testified that termination is in Child's best interests. And as explained above, Mother has not shown an ability to provide a stable, drug-free environment for Child. Though Mother had been sober for over ten months by the time of the fact-finding hearing, six of those months were spent in jail, and this came after a year and a half of virtually no progress by Mother. While we commend Mother's recent work toward sobriety, we agree with the trial court's remark that it was “not convinced Mother will be able to maintain her sobriety and be capable of caring for this child once she is released from the highly restricted nature of house arrest.” Appellant's App. Vol. II pp. 45-46.

[25] While the evidence above is sufficient to support the trial court's best-interests conclusion, permanency is a central consideration in determining Child's best interests. Child, now three, has been removed from Mother's care since his birth, and Mother hasn't seen Child in person since May 2023. Since then, Child has lived with his maternal grandparents, to whom he is bonded and who wish to adopt him, and who have already adopted two of Child's siblings. As CASA put it, Child deserves permanency, and Mother “has had her chance and she has failed multiple times.” The totality of the evidence supports the trial court's conclusion that termination is in Child's best interests.

[26] Affirmed.

FOOTNOTES

1.   In May 2024, Mother pled guilty to Level 6 felony possession of a narcotic drug, and in November, the trial court sentenced her to one year of reporting probation.

2.   Section 31-35-2-4 was amended effective March 11, 2024, after DCS filed its termination petition in this case. See Pub. L. No. 70-2024, § 4. The parties cite to the pre-amendment version of the statute, so we do the same.

3.   Mother refers to this finding as “Finding B.7.,” Appellant's Br. p. 17, but the statement she challenges is in Finding B(8), not (7), see Appellant's App. Vol. II p. 42.

4.   Mother refers to this finding as “Finding C. 13,” Appellant's Br. p. 18, but the statement she challenges is in Finding C(11), not (13), see Appellant's App. Vol. II p. 45.

5.   Mother also challenges the trial court's conclusion that there is a reasonable probability continuation of the parent-child relationship poses a threat to Child's well-being. But because we affirm the trial court's conclusion that there is a reasonable probability Mother will not remedy the conditions resulting in Child's removal and continued placement outside the home, we need not address this alternate conclusion. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (explaining Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires trial courts to find only one of the three provisions has been established by clear and convincing evidence), trans. denied.

Vaidik, Judge.

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