IN RE: the Termination of the Parent-Child Relationship of L.O. (2025)

MEMORANDUM DECISION

[1] L.O. (“Mother”) appeals the trial court's order terminating her parental rights to A.J. (“Child”). She raises the following restated issues for our review:

I.  Whether the evidence presented supported Finding 20, that Mother had a history of housing instability; and

II. Whether the trial court's judgment was clearly erroneous.

[2] Finding no error, we affirm.

Facts and Procedural History

[3] L.O. and M.J.¹ are the biological parents of Child, who was born on April 6, 2021. On that same date, the Indiana Department of Child Services (“DCS”) received a report that Child was the victim of abuse or neglect because his umbilical cord blood tested positive for multiple illicit substances at birth. DCS initiated an investigation, and on April 20, 2021, a DCS employee spoke with Mother who admitted to using marijuana one time during her pregnancy but denied other substance abuse. Mother also informed DCS that she was breastfeeding Child. Mother voluntarily consented to a drug screen, which later indicated the presence of multiple illicit substances. Between April 20, 2021, and May 20, 2021, DCS repeatedly attempted to visit Mother's home to ascertain Child's safety and well-being, but Mother refused to meet with DCS. On May 16, 2021, DCS received a report alleging that Child's older sibling (“Sibling”) had been in a vehicle with maternal grandfather when he was arrested for driving while intoxicated. When DCS spoke with Mother about the incident, she denied knowledge that maternal grandfather was intoxicated when he picked up Sibling.

[4] On May 20, 2021, DCS filed a petition alleging that Child was a Child in Need of Services (“CHINS”) because he was born drug exposed, Mother admitted using marijuana while pregnant, Mother refused to meet with DCS after Child's birth, and Mother allowed Sibling to leave with an intoxicated maternal grandfather. DCS removed Child from Mother's care on May 24, 2021. Mother admitted to the allegations in the petition, and the trial court adjudicated Child as a CHINS on June 16, 2021. In a July 28, 2021 dispositional decree, the trial court ordered Mother to participate in services including weekly DCS contact, substance abuse assessment and treatment, random drug screens, counseling, and supervised visitation with Child. The trial court also ordered Mother to abstain from illegal drug use, to secure and maintain legal and stable income, and to maintain suitable, safe, and stable housing.

[5] Mother's compliance with her court-ordered services was minimal. She did not participate in individual counseling despite DCS referrals. She also failed to complete a required parenting assessment and an evaluation for substance abuse disorder. Despite being given referrals for home-based casework, she did not respond to contacts from the providers.

[6] During the pendency of the CHINS case, Mother participated in inpatient drug rehabilitation at Volunteers of America on two occasions. Her first attempt ended in a medical discharge due to her claims that she was unable to climb the stairs at the facility due to her pregnancy with another child. After this discharge, Mother waited “quite a long time” before returning and completing the program in September 2022. Tr. Vol. I p. 111. Although she was requested to complete intensive outpatient treatment after finishing the inpatient program, Mother never provided DCS any documentation showing she had done so.

[7] As for Mother's compliance with drug screening, she failed to comply with Cordant random screening protocol, and between June 11, 2021, and May 7, 2023, she missed 391 calls and 183 random drug tests. Of the tests Mother did take, she tested positive for methamphetamine and amphetamine on May 1, 2023. She also tested positive for these substances when screened on October 30, 2023, the first day of the termination hearing. Mother initially participated in supervised visitation with Child, but the trial court suspended her visits due to her positive drug screens. She never contacted DCS about reinstating her visitation rights after that, and the last time she had visitation with Child was April 2023. Throughout the pendency of the case, Mother never provided DCS with any proof of employment. In April 2022, Mother was evicted from her apartment with a judgment of $1,952.84 entered against her.

[8] On August 4, 2023, DCS filed a petition to terminate Mother's parental rights to Child. A termination hearing was held over two days. On the first day, October 30, 2023, Mother appeared in court but arrived late. Evidence was presented that Child had remained out of Mother's care since the date of removal and was living in foster care at the time of the hearing in the same placement as Sibling, where they were both thriving. At the time of the termination hearing, Mother was reportedly living with her mother in Delaware County, though the Family Case Manager (“FCM”) had not verified the suitability of this housing arrangement. On the second day of the hearing, January 8, 2024, Mother failed to appear, but her counsel was present for the hearing. At the time of the hearing date, Mother had a pending Level 6 felony auto theft charge and an active arrest warrant for failure to appear for those criminal proceedings.

[9] At the time of the termination hearing, Mother had not seen Child for almost a year. Child's foster mother expressed willingness to adopt both Child and Sibling. DCS recommended termination of Mother's parental rights so that Child could achieve permanency and stability through adoption. Child's court-appointed special advocate (“CASA”) recommended termination of parental rights, citing Mother's non-participation in services, lack of stability, and ongoing substance abuse.

[10] On May 21, 2024, the trial court issued its order terminating Mother's parental rights to Child. Among the trial court's findings and conclusions was Finding 20, which addressed Mother's housing instability and referred to the eviction action and monetary judgment against Mother, stating: “[Mother] also has a history of housing instability, having been the subject of an eviction action under cause 48C04-2202-EV-180. A judgment for damages in that case was entered on June 6, 2022, in the amount of $1952.84, along with interest and court costs.” Appellant's App. Vol. II p. 9. The trial court concluded that there was a reasonable probability that the conditions that resulted in Child's removal from Mother's care and the continued placement outside the home will not be remedied, the continuation of the parent-child relationship posed a threat to Child's well-being, termination was in Child's best interests, and DCS had a satisfactory plan for his care. Mother now appeals.

Discussion and Decision

[11] While the Fourteenth Amendment to the United States Constitution protects the traditional right of a parent to establish a home and raise their children, the law allows for the termination of parental rights based on a parent's inability or unwillingness to meet parental responsibilities. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005); In re D.P., 994 N.E.2d 1228, 1231 (Ind. Ct. App. 2013). Thus, parental rights are subordinated to the child's interests in determining the appropriate disposition of a petition to terminate the parent-child relationship. In re. J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013). The purpose of terminating parental rights is not to punish the parent but to protect the child. In re D.P., 994 N.E.2d at 1231. Termination of parental rights is proper where the child's emotional and physical development is threatened. Id. The trial court need not wait until the child is irreversibly harmed such that their physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id.

[12] As our Supreme Court has observed, “[d]ecisions to terminate parental rights are among the most difficult our trial courts are called upon to make. They are also among the most fact-sensitive—so we review them with great deference to the trial courts ․” E.M. v. Ind. Dep't of Child Servs., 4 N.E.3d 636, 640 (Ind. 2014). In evaluating the trial court's findings and conclusions in an order terminating parental rights, we review only for clear error, and we apply a two-tiered standard of review. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012). First, we must determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id. “A judgment is clearly erroneous if the findings do not support the trial court's conclusions or the conclusions do not support the judgment.” Id. If the evidence and reasonable inferences support the trial court's decision, we must affirm. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.

I. Finding 20

[13] Mother initially argues that the trial court's Finding 20 was not supported by the evidence presented and, therefore, should be disregarded. A finding is clearly erroneous when there are no facts or inferences drawn therefrom which support it. Stewart v. Randolph Cnty. Off. of Fam. & Child., 804 N.E.2d 1207, 1212 (Ind. Ct. App. 2004). Even erroneous findings are not reversible error if they are harmless. See, e.g., In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (“We may reverse a trial court's judgment ․ only if its findings constitute prejudicial error ․ A finding of fact is not prejudicial to a party unless it directly supports a conclusion.”), trans. denied. An erroneous finding is “merely harmless surplusage” when the unchallenged findings “provide ample support for the trial court's ultimate conclusion.” Id.

[14] Here, Mother challenges the trial court's Finding 20, which stated: “[Mother] also has a history of housing instability, having been the subject of an eviction action under cause 48C04-2202-EV-180. A judgment for damages in that case was entered on June 6, 2022, in the amount of $1952.84, along with interest and court costs.” Appellant's App. Vol. II p. 9. Mother asserts that finding was erroneous because, although the evidence did support that she had been the subject of a prior eviction action, this single occurrence was not sufficient to constitute a “history of housing instability.” Appellant's Br. p. 10.

[15] Although the phrasing in Finding 20 could have been more artful, our role is not to parse the trial court's language, and the essence of the finding strikes us as a reflection on housing instability in light of Mother's recent eviction case and her failure to confirm her housing at the time of the termination hearing. Furthermore, the record reflected that Mother previously denied DCS access to her residence on multiple occasions, which further supported the trial court's housing-related concerns. However, any error in the trial court's finding related to Mother's housing instability is harmless under the circumstances.

[16] Although Mother may be correct that one instance of eviction does not constitute a history of housing instability, we find any error in Finding 20 to be harmless. An erroneous finding is only cause for reversal if it were the “sole support for any conclusion of law necessary to sustain the judgment” of the court. In re B.J., 879 N.E.2d at 20. However, Finding 20 did not constitute the sole support for any conclusion of law necessary to sustain the judgment. And Mother does not challenge any of the trial court's other findings of fact, so she has waived any arguments relating to the unchallenged findings, and we therefore accept all of the trial court's findings as true. See In re S.S., 120 N.E.3d 605, 609 n.2 (Ind. Ct. App. 2019) (noting this court accepts unchallenged trial court findings as true). Therefore, even disregarding Finding 20, reversal is not warranted because the other evidence presented at the hearing and remaining findings support the termination order. As will be discussed below, the other circumstances and evidence presented at the termination hearing—even absent this finding—supported the trial court's judgment. Thus, we decline to set aside the termination order on this basis. See B.J., 879 N.E.2d at 20 (holding that an erroneous finding was merely harmless surplusage that did not prejudice the mother and was not grounds for reversal where there was evidence sufficient to support the trial court's ultimate findings on the elements necessary to sustain the judgment).

II. Sufficient Evidence Judgment

[17] Mother next challenges the sufficiency of the evidence supporting the trial court's conclusions that there was a reasonable probability that the conditions resulting in the removal of Child and the reasons for placement outside of the home would not be remedied and that the continuation of the parent-child relationship poses a threat to the well-being of Child.

[18] Before an involuntary termination of parental rights may occur, the State must allege and 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 [CHINS];

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2).² The State's burden of proof for establishing these allegations is one of clear and convincing evidence. In re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App. 2009). Moreover, “if the court finds that the allegations in a petition described in section 4 of this chapter are true, the court shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a) (emphasis added). Further, because Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of parental rights, the trial court need only find one of the three requirements of subsection (b)(2)(B) has been established by clear and convincing evidence, we need not address all of the requirements if we find that one has been proven. See I.C. § 31-35-2-4(b)(2)(B); A.D.S., 987 N.E.2d at 1158 n.6.

[19] We, therefore, first look to determine if DCS proved by clear and convincing evidence that there was a reasonable probability that the conditions that resulted in removal and continued placement outside of Mother's care would not be remedied. In determining whether there is a reasonable probability that the conditions that led to a child's removal and continued placement outside the home will not be remedied, a court engages in a two-step analysis. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, the court must determine what conditions led to the child's placement and retention in foster care, and second, the court must determine whether there is a reasonable probability that those conditions will not be remedied. Id.

[20] 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.’ ” E.M., 4 N.E.3d at 643 (quoting K.T.K., 989 N.E.2d at 1231). Under this rule, “[trial] courts have properly considered 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.” In re D.B., 942 N.E.2d 867, 873 (Ind. Ct. App. 2011).

[21] In addition, DCS need not provide evidence ruling out all possibilities of change; rather, it must establish only that there is a reasonable probability that the parent's behavior will not change. In re Involuntary Termination of Parent-Child Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust th[e] delicate balance to the trial court, which has [the] discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination.” E.M., 4 N.E.3d at 643. When determining whether the conditions resulting in removal would be remedied, the trial court may consider the parent's response to the offers of help from DCS or the service providers. D.B., 942 N.E.2d at 873.

[22] Here, Child was removed from Mother's care on May 24, 2021, about six weeks after his birth, because Child was born drug exposed, Mother admitted using marijuana while pregnant, Mother refused to meet with DCS after Child's birth, and Mother allowed Sibling to leave with an intoxicated maternal grandfather. At the time of the termination hearing, Child had continued to remain outside of Mother's care for almost three years since the date of removal due to Mother's failure to demonstrate that she had successfully completed substance abuse treatment such that she could properly care for Child, failure to make progress in the services provided by DCS, failure to have meaningful interaction with Child through visitation, and DCS's continued safety concerns for Child.

[23] The evidence presented at the termination hearing revealed that Mother did not comply with the court-ordered services in the CHINS dispositional order. She failed to engage in individual counseling even though DCS provided referrals to do so. She also failed to complete parenting and substance abuse assessments and failed to participate in home-based casework even though DCS provided a referral and service providers reached out to her. Although Mother participated in inpatient drug rehabilitation treatment on two occasions, when her initial stint resulted in a medical discharge, she waited “for quite a long time” to return to the program, Tr. Vol. I p. 111, and eventually completed the program in September 2022. However, she never provided DCS with any documentation indicating that she completed intensive outpatient treatment for which she was referred to after the inpatient treatment. Mother also failed to follow protocol for random drug screening, missing 391 calls and 183 random drug tests between June 11, 2021, and May 7, 2023. Mother tested positive for methamphetamine and amphetamines on May 1, 2023, and she tested positive for both methamphetamine and amphetamines on October 30, 2023, the first day of the termination hearing. As a result of Mother's positive drug screens, her supervised visitation with Child was suspended, and at the time of the termination hearing, she had not engaged in supervised visitation since April 2023.

[24] A trial court may “properly consider the services offered to the parent by [DCS] and the parent's response to those services as evidence of whether conditions will be remedied.” D.B., 942 N.E.2d at 873. Evidence of a pattern of unwillingness to deal with parenting problems and to cooperate with those providing services supports a finding that there exists no reasonable probability that the conditions will change. Lang v. Starke Cnty. Off. of Fam. & Child., 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (citations omitted), trans. denied. Additionally, “the failure to exercise the right to visit one's children demonstrates a ‘lack of commitment to complete the actions necessary to preserve [the] parent-child relationship.’ ” Id. (quoting In re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002)).

[25] Participating in and completing the required services and abstaining from drug use were necessary for Mother to reunify with Child and for Child to be placed back in Mother's care. However, Mother only minimally participated in such services, and after initially having visitation with Child, she failed to ever seek to re-establish visitation after it was suspended. She also never demonstrated that she had addressed her substance abuse issues, especially in light of the fact that she tested positive for both methamphetamine and amphetamines on the first day of the termination hearing. She, therefore, never established that she could safely parent Child or demonstrate any meaningful and lasting change such that DCS could return Child to her care. The trial court could reasonably conclude that based on Mother's historical patterns of conduct and failure to show any substantial change there was a reasonable probability of future neglect if Child were to be returned to her care. As the Indiana Supreme Court has observed, a child “ ‘cannot wait indefinitely for their parents to work toward preservation or reunification.’ ” In re Ma.H., 134 N.E.3d 41, 49 (Ind. 2019) (quoting E.M., 4 N.E.3d at 648). Based on the foregoing, we identify sufficient evidence supporting the trial court's conclusion that there was a reasonable probability that the conditions which resulted in Child's removal and continued placement outside the home would not be remedied.

[26] Mother also asserts that there was insufficient evidence supporting the trial court's conclusion that there was a reasonable probability that the continuation of the parent-child relationship posed a threat to the well-being of Child. However, we need not address this argument because of the disjunctive nature of the subsection (b)(2)(B) and because we have concluded that the trial court's determination that the conditions for Child's removal and continued placement outside of the home would not be remedied was supported by clear and convincing evidence. We, therefore, conclude that the trial court did not err in its judgment terminating Mother's parental rights to Child.

[27] Affirmed.

FOOTNOTES

1.   M.J.’s parental rights to Child were also terminated at the same time as Mother's. However, he does not participate in this appeal.

2.   Indiana Code section 31-35-2-4 has been amended since DCS filed its termination petition on August 4, 2023. Effective March 11, 2024, subsection (b)(2)(B)(i), (ii), and (iii) has been rewritten as subsection (d)(3), (4), and (5). See Ind. Code § 31-35-2-4. Although the trial court issued its order terminating parental rights after March 11, 2024, neither party argues that the new version should apply.

Foley, Judge.

Bailey, J. and Bradford, J., concur.