B.B., Appellant-Respondent v. INDIANA DEPARTMENT OF CHILD SERVICES (2025)

MEMORANDUM DECISION

Case Summary

[1] B.K.B. (Mother) appeals the involuntary termination of her parental rights to her minor daughter, B.G.S. (Child). Mother challenges the sufficiency of the evidence supporting the termination.

Facts & Procedural History

[2] Mother gave birth to Child on August 7, 2022, and J.M.S.’s (Father) paternity was established by affidavit. On November 1, 2022, Child began experiencing seizure-like activity, so Mother and Father (Parents) took her to the hospital. When Child tested positive for amphetamines, hospital staff contacted the Indiana Department of Child Services (DCS). Parents blamed Child's drug exposure on her babysitter, but they refused to disclose the sitter's name or address to DCS. They also refused to submit to drug screens or otherwise cooperate with DCS's investigation of the matter.

[3] On November 3, 2022, DCS filed a petition alleging that Child was a child in need of services (CHINS). DCS noted that Mother and Father each had open DCS cases in a neighboring county involving other children. DCS alleged, in part, that it could not ensure Child's safety, as she was exposed to drugs and suffered physical harm from such drugs while in the care and custody of Parents, who failed to provide a reasonable explanation and refused to cooperate with DCS. Following a hearing that same day, the trial court ordered Child to be taken into DCS custody. The court also entered provisional orders requiring Parents to, among other things, submit to random drug screens and attend all scheduled visits with Child.

[4] Thereafter, on November 10, 2022, Parents submitted to drug screens, with Mother testing positive for THC and Father testing positive for THC and methamphetamine. Mother completed a substance use assessment on December 13, 2022, and was recommended to complete individual therapy, group therapy, and skills coaching. She participated in individual therapy a couple times and then ceased therapy altogether. She did not participate at all in group therapy or skills coaching. She tested positive for THC again in April and May 2023, as did Father.

[5] In June 2023, Child was adjudicated a CHINS. The court's order indicated that Child had “multiple chronic medical conditions” that required treatment with “several medical specialists, including a pulmonologist, cardiologist, occupational therapist, and speech therapist.” Exhibits at 67. The court found that Parents, who had not visited Child in three months, failed to provide evidence that they understood or were capable of meeting Child's medical needs. Further, the court found that Parents’ “persistent use of illegal substances pose[d] a threat to [Child's] safety” and that “exposure to drugs could negatively impact [Child's] health, given her medical condition.” Id.

[6] Following a dispositional hearing on July 13, 2023, the trial court found that Child needed “a safe and stable home free from substance use and with care givers who are sober, fit, willing, and able to meet [her] basic needs.” Id. at 69. The court ordered Parents to, among other things, contact their DCS family case manager (FCM) weekly, participate in programs recommended by FCM or service providers, complete substance use assessments and follow all resulting treatment recommendations, not use illegal drugs, submit to random drug screens, attend all of Child's medical appointments, and attend all scheduled visits with Child.

[7] At a permanency hearing in early November 2023, the trial court changed the permanency plan to include a concurrent plan for Child to be placed for adoption, as Parents were not in compliance with the case plan. They had not visited Child, submitted to random drug screens, nor participated in treatment recommended from their substance abuse assessments. Parents had also failed to attend the child and family team meeting (CFTM) that was held earlier in the month to discuss the permanency plan.

[8] By the beginning of 2024, Parents indicated a desire to start visiting Child again after more than nine months. Mother also completed an assessment on January 12, 2024, and received an updated care plan, which recommended individual therapy, group counseling, skills coaching, and further psychiatric consultation. Thereafter, she was scheduled for therapy on ten separate occasions, but she attended none of the sessions, generally “just failing to show up” rather than calling to reschedule. Appendix at 20. Parents also failed to attend a CFTM on January 17, 2024.

[9] On January 22, 2024, DCS filed a motion to modify the dispositional decree. DCS sought an order from the court suspending visits due to Parents’ noncompliance with the case plan and failure to visit with Child since March 10, 2023. DCS noted that it had “made efforts to engage with parents by encouraging them to attend appointments at the Bowen Center, offering gas cards, offering services to help with transportation for visits, and encouraging them to attend team meetings.” Exhibits at 171. The trial court granted DCS's motion on February 29, 2024, and ordered: “Visits are suspended and shall resume when parents call in to DCS for drug screens for 30 consecutive days and parents do not test positive for illegal or unprescribed substances.” Id. at 78. Visits were never resumed because Parents did not consistently comply with the court-ordered drug screens, and they tested positive for illegal drugs.

[10] Meanwhile, on January 23, 2024, DCS filed a Verified Petition for Involuntary Termination of Parent-Child Relationship. The termination factfinding hearing was held on May 6, 2024. At the time, Parents had last submitted to a drug screen on March 13, 2024, with both testing positive for THC. They had not visited Child for over a year ¹ and had attended only one of Child's many medical appointments. The last CFTM they attended was in June 2023.

[11] FCM Tonya Douglas testified that Child did not really know any other parent besides her kinship placement, with whom Child had been placed since November 18, 2022. FCM Douglas opined that adoption was in Child's best interest due to Parents’ ongoing noncompliance with the case plan, continued use of illegal drugs, failure to visit child, and lack of understanding regarding Child's ongoing medical needs. FCM Douglas detailed Child's medical history and noted that out of about twenty-six medical appointments, Parents attended only one – Child's well-child checkup in June 2023.

[12] Child's CASA, Brian Erne, agreed that termination was in Child's best interest. He testified that Child is very bonded with her foster parents, who wish to adopt, and that Child does not know Parents.

[13] On July 25, 2024, the trial court issued its order terminating the parental rights of Mother and Father to Child. Mother now appeals.² Additional information will be provided below as needed.

Standard of Review

[14] When reviewing the termination of parental rights, we cannot reweigh the evidence or judge the credibility of the witnesses, and thus we will consider only the evidence and reasonable inferences that support the trial court's judgment. Matter of Ma.H., 134 N.E.3d 41, 45 (Ind. 2019). In deference to the trial court's unique position to assess the evidence, we will set aside its judgment terminating a parent-child relationship only if it is clearly erroneous. In re S.K., 124 N.E.3d 1225, 1231 (Ind. Ct. App. 2019), trans. denied.

[15] Our review for clear error is confined to two steps: whether the evidence clearly and convincingly supports the trial court's findings of fact and whether the findings clearly and convincingly support the judgment. In re R.S., 56 N.E.3d 625, 628 (Ind. 2016). Further, reviewing whether the evidence “clearly and convincingly” supports the findings, or the findings “clearly and convincingly” support the judgment, is not a license to reweigh the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (observing that weighing the evidence under the clear and convincing evidence standard applicable to termination cases is the trial court's prerogative, not ours).

Discussion & Decision

[16] Under the statutory authority applicable at the time of the underlying termination proceedings,³ DCS was required to allege and prove by clear and convincing evidence that, among other things, one 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[.]

I.C. § 31-35-2-4(b)(2)(B); Ind. Code § 31-34-12-2. DCS was also required to prove by clear and convincing evidence that termination is in Child's best interests. I.C. § 31-35-2-4(b)(2)(C).

[17] On appeal, Mother's sole challenge is to the trial court's conclusion that there is a reasonable probability that the conditions that resulted in Child's removal or continued placement outside Mother's home will not be remedied. In determining the probability that conditions will change,

the court must judge a parent's fitness to care for his or her child at the time of the termination hearing, taking into consideration evidence of changed conditions. Due to the permanent effect of termination, the trial court also must evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child․ A court may properly consider evidence of a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. Moreover, a trial court “can reasonably consider the services offered by the [DCS] to the parent and the parent's response to those services.”

In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citations omitted).

[18] After setting out forty-eight specific findings of fact, none of which Mother challenges on appeal, the trial court explained its conclusion that the conditions resulting in removal or continued placement outside Mother's home were unlikely to change:

9. Here, the parents’ past behavior weighs heavily, and the Court finds it best predicts their future behavior. Parents made minimal efforts at services and no appreciable effort at visits and maintaining a bond with [Child].

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13. There is a reasonable probability that, based upon the past pattern of conduct of the parents, both prior to and during the CHINS case, the reasons for removal and the reasons for placement outside of parents’ home are likely to continue.

14. Mother and Father have shown a distinct lack of desire or willingness to take advantage of assistance offered in order to meet their obligations to [Child], including transportation so that they could consistently engage in services.

15. Mother and Father have shown no desire or willingness to meet [Child's] medical needs.

16. Mother and Father have shown no desire or willingness to consistently engage in services, to remain sober and substance free or to undergo any treatment to address substance use.

Appendix at 25-26.

[19] Mother's argument on appeal is brief. She asserts that while she was not completely compliant with the dispositional order, she did take steps to comply. In this regard, Mother references her limited engagement with individual therapy and her attendance at one of Child's medical appointments. But she ignores the fact that these nominal steps were taken before the dispositional hearing. After the dispositional order was issued in July 2023, the record establishes that Mother did not visit with Child, did not attend any of Child's multiple medical appointments, and did not engage in individual therapy, group therapy, or skills coaching.

[20] Moreover, Mother did not comply with the modified dispositional order entered in February 2024. This order provided that for visits to resume, Mother was first required to call DCS daily for thirty consecutive days, submit to random drug screens, and not test positive for any illegal substances. While Mother did call in as required in February and March 2024, she did not consistently submit to drug screens as directed. And of the three screens she took (out of six requested), her last one – taken on March 13, 2024 – was positive for THC. Mother notes that (unlike Father) she never tested positive for amphetamines or methamphetamines, only THC, and that “marijuana, which while illegal, does not raise the same level of concerns as methamphetamine.” Appellant's Brief at 10.

[21] Mother's arguments are nothing more than requests to reweigh the evidence, which we cannot do. The trial court's conclusion that the conditions resulting in Child's removal in November 2022 and continued placement outside of Mother's home are unlikely to be remedied is overwhelmingly supported by its findings and the evidence.

[22] Judgment affirmed.

FOOTNOTES

1.   Parents visited Child three times during the CHINS proceedings. The visits occurred between January and March 2023, during which time nine visits were scheduled. After March 10, 2023, Parents did not visit Child. When Parents cited transportation issues in June 2023, DCS offered to assist with transportation to visits but they declined.

2.   Father does not participate in this appeal.

3.   Our legislature has made extensive changes to Ind. Code § 31-35-2-4, which became effective March 11, 2024. DCS filed its petition in January 2024, under the prior version of the statute.

Altice, Chief Judge.

Brown, J. and Tavitas, J., concur.