S.R. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2025)

MEMORANDUM DECISION

[1] S.R. (“Mother”) appeals the involuntary termination of her parental rights to her minor children, K.R. and M.B. (the “Children”). We affirm.

Facts and Procedural History

[2] Mother is the mother of K.R., who was born in 2018, and M.B., who was born in 2021. On October 13, 2022, the Department of Child Services (“DCS”) filed a petition alleging the Children were children in need of services (“CHINS”). DCS alleged that: Mother failed to provide the Children with a safe and stable home free of substance abuse; on October 12, 2022, the smell of marijuana permeated the family home at a time when the Children were present; Mother admitted to smoking marijuana on a daily basis; although Mother indicated that the Children were always with a sober caregiver while she smokes marijuana, Mother and the two other adults in the home were observed to be under the influence; on October 11, 2022, Mother was observed to not be “practicing safe sleep, as [M.B.] was observed to be sleeping in a pack and play with blankets and pillows”; and the home had minimal food provisions. Exhibits Volume I at 18. DCS also alleged that Mother had previously received services through Firefly Children and Family Alliance and her case was closed due to lack of participation. It further asserted that the alleged father of the Children was N.B. (“Father,” and together with Mother, “Parents”), there was a history of domestic violence between Parents, and the Children's great-aunt indicated the violence was ongoing. That same day, Mother tested positive for THC and fentanyl.

[3] On November 14, 2022, the parties entered a Facilitated Agreement as to Parents which was signed by the trial court and in which Mother admitted that the Children were CHINS. The court ordered Mother to complete a substance abuse assessment and follow recommendations, participate in homebased case management services and follow all recommendations, complete random drug screens, allow visits by family case managers, keep all appointments, maintain suitable housing, refrain from using illegal substances, and obey the law.

[4] On January 30, 2023, Mother tested positive for benzoylecgonine, THC, and fentanyl. On April 27, 2023, the court entered an Order on Periodic Case Review finding that a referral was made through Aspire for a substance abuse assessment intake, Mother had stated that she was receiving substance abuse services elsewhere, and the family case manager had been unable to confirm. The court also found that Mother had not been compliant with random drug screens. On June 22, 2023, in cause number 48C04-2306-EV-577, an eviction action, the trial court ordered Mother to vacate certain property.

[5] In September 2023, Mother overdosed. Heather Anderson, a certified peer recovery coach at the Madison County Health Department, met with Mother. Anderson “got her into a half way house,” FROG Recovery, and talked to Mother about treatment and her own experience. Transcript Volume II at 210. Mother admitted that she had a problem. Anderson's referral ended in November 2023 after Anderson told Mother to call her to set up an appointment and left a voicemail and Mother did not respond.

[6] Meanwhile, on October 12, 2023, the court entered an Order Approving Permanency Plan which found that Mother had not been calling in for her random drug screens and had not taken any drug screens since her positive test in January 2023. It found that DCS made a referral for Mother to attend inpatient care but Mother refused to stay in a facility “as long as nine months.” Exhibits Volume I at 34.

[7] On October 12 and 24, 2023, Mother tested positive for benzoylecgonine and cocaine. On October 30, 2023, Mother tested positive for benzoylecgonine, cocaine, and THC. On November 20, 2023, Mother tested positive for tramadol, benzoylecgonine, cocaine, and THC.

[8] On November 9, 2023, DCS filed a verified petition for the involuntary termination of the parent-child relationship between Parents and Children.

[9] On the afternoon of March 4, 2024, Anderson Police Officer Matthew Blackmon located a vehicle with the driver's door open and observed that the passenger, later identified as Mother, and the driver were slumped over and unconscious and that there was “a powder substance in the center in between the driver and the passenger in the front seat.” Transcript Volume II at 95. Officer Blackmon attempted to wake Mother, and she regained consciousness. Mother had signs of intoxication including glassy, red, and bloodshot eyes, and she “was kind of in and out of consciousness and not totally coherent.” Id. at 96. Mother was transported by ambulance to the emergency room.

[10] At the hospital, Mother told Officer Blackmon that she had relapsed on “rocksies,” which Officer Blackmon recognized as “street vernacular” for a narcotic. Id. at 97. Mother also told him that she had been living with her boyfriend, Jerome, but “they wanting [sic] her out of that house so she was sleeping in her car and had been up for several days without sleep and that's why she was in the car.” Id. at 98. She also stated that she “was going to sleep in the car until she found another option.” Id. That same day, Mother was arrested.¹

[11] According to the Notice of Pretrial Assessment based upon an interview with Mother at the Madison County Jail, Mother reported that she was not working, had been homeless prior to incarceration, had “recent substance use,” and had “a substance use problem.” Exhibits Volume I at 88. The notice also indicated that Mother had not lived at the same residence for the previous six months. Mother contacted Anderson who met her in jail, she became involved in “the twelve step recovery meeting.” Transcript Volume II at 213.

[12] On March 25 and April 4, 2024, the court held a hearing. DCS presented the testimony of multiple witnesses including Officer Blackmon, Family Case Manager Tammy Sloss (“FCM Sloss”), who had been working on Mother's case since June 2023, and Court Appointed Special Advocate Wendy Rice (“CASA Rice”), who began working on the case in October 2023. After DCS rested, Mother presented the testimony of Anderson and Cassandra McDonald, a “DCS provider through RAIN” who provided supervised visitations and homebased casework. Id. at 223.

[13] On July 31, 2024, the court entered an order terminating the parent-child relationship between Parents and the Children. Specifically, the court found that there was a reasonable probability that the conditions that resulted in the Children's removal or continued placement outside the home would not be remedied; the continuation of the parent-child relationship posed a threat to the well-being of the Children; termination of parental rights was in the Children's best interests; and there was a satisfactory plan for the care and treatment of the Children.

Discussion

[14] Mother argues that DCS failed to establish the elements in Ind. Code § 31-35-2-4(b)(2)(B). She argues that she “was not given the opportunity to show that she had learned her lesson and was able to achieve abstinence.” Appellant's Brief at 11. She asserts that her occasional drug use did not justify termination of her parental rights because there was no showing that her use had an adverse effect on her ability to be a proper parent. She contends that “[t]he fact that [she] did not complete the programs she agreed to do is not grounds for termination per se.” Id. at 14. She acknowledges that she “was sentenced to the Madison County Continuum of sanctions for 18 months on the charges pending during the termination case,” asserts that “[i]t is not known what her placement was in the COS program,” and states that “[b]eing assigned to COS should be no more destructive of his [sic] parent-child relationship than if [she] had employment out of the country or in a domestic location where facilities for children were lacking.” Id. at 16-17. Mother also argues that “[d]enying termination would not harm the [Children] and it would give [her] a final opportunity to regain [the Children] by getting inpatient treatment for her drug use as recommended by her recovery coach Heather Anderson.” Id. at 17.

[15] At the time of the petition, Ind. Code § 31-35-2-4(b)(2) required DCS to 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 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.

(Subsequently amended by Pub. L. No. 70-2024, § 4 (eff. March 11, 2024)).² If the court finds that the allegations in a petition described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

[16] A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. Id. We give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Id. “Because a case that seems close on a ‘dry record’ may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.” Id. at 640.

[17] In determining whether the conditions that resulted in a child's removal will not be remedied, we engage in a two-step analysis. See id. at 642-643. First, we identify the conditions that led to removal, and second, we determine whether there is a reasonable probability that those conditions will not be remedied. Id. at 643. In the second step, the trial court must judge a parent's fitness as of the time of the termination proceeding, taking into consideration evidence of changed conditions, balancing a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. 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. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that a parent's past behavior is the best predictor of future behavior. Id. The statute does not simply focus on the initial basis for a child's removal for purposes of determining whether a parent's rights should be terminated, but also those bases resulting in the continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider evidence of a parent's prior criminal history, drug abuse, history of neglect, failure to provide support, lack of adequate housing and employment, and the services offered by DCS and the parent's response to those services. Id. 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. Id.

[18] The record reveals that Mother submitted multiple drug screens that tested positive for benzoylecgonine, THC, fentanyl, or cocaine. Mother was incarcerated at the time of the April 4, 2024 hearing. During redirect examination, DCS's counsel referenced the CHINS case and asked FCM Sloss if either parent was able to safely and stably parent the Children, and FCM Sloss answered, “No, absolutely not.” Transcript Volume II at 167. FCM Sloss testified that a referral was placed for a substance abuse assessment but Mother never completed one. She also stated that, when she began working on the case, she “constantly tried to get [Mother] to go in.” Id. at 138. She testified that Mother did not participate in homebased case management services and follow recommendations. She indicated that Mother did not consistently complete random drug screens. When asked if Mother maintained supervised visitation with the Children, she answered, “She maintained but not consistently.” Id. at 139. She indicated that the referrals for supervised visits were no longer open because DCS decided to cancel the referral in January 2024 due to “no progress and the [Children] continuing to have meltdowns or behaviors ․” Id. at 140. She indicated that Mother did not consistently maintain weekly contact with her or notify her of changes of address, did not keep all of her appointments, and failed to maintain suitable housing.

[19] When asked if she knew of any service in which Mother was successful, CASA Rice answered in the negative. To the extent Mother argues that her drug use did not impact her ability to parent, we note that her trial counsel acknowledged that Mother's addiction “robs her of free will” and “takes away her abilities as a parent and ․ as a functioning adult.” Transcript Volume II at 246.

[20] In light of the unchallenged findings and the evidence set forth above and in the record, we cannot say the trial court clearly erred in finding a reasonable probability exists that the conditions resulting in the Children's removal and reasons for placement outside Mother's care will not be remedied.³

[21] For the foregoing reasons, we affirm the trial court's termination order.

[22] Affirmed.

FOOTNOTES

1.   At the March 25, 2024 hearing, DCS's counsel stated that Mother was arrested on March 4, 2024. During direct examination, DCS's counsel asked Family Case Manager Tammy Sloss: “[D]id [Mother] report to you that she had been arrested on March 4th?” Transcript Volume II at 142. She answered: “I was contacted by [Father] that [Mother] wanted me to come visit her in the jail ․ and that was like the first contact from either of them since the last court date.” Id. at 142-143. When DCS's counsel asked Court Appointed Special Advocate Wendy Rice what allegation caused Mother to be incarcerated, Mother's counsel objected, and the court sustained the objection. Specifically, the court stated: “[T]he fact that she is incarcerated is relevant or any questions that may go to how long she may be incarcerated. I don't know the nature of the allegations would go toward that so I'm going to sustain it.” Id. at 200. In its July 31, 2024 order, the trial court found that Mother “committed the offense of Possession of Cocaine or Narcotic Drug on March 4, 2024,” and noted that “[a] review of court records show that [Mother] pled guilty, was released from jail on May 17, 2024, and was sentenced to eighteen months on the Continuum of Sanctions program.” Appellant's Appendix Volume II at 15.

2.   Although the trial court's termination order was entered on July 31, 2024, after the effective date of the amended statute, DCS filed the termination petition prior to the effective date. Mother cites the prior version of the statute that we refer to above, and she makes no suggestion that the amended version applies to this case. Further, we note that Ind. Code § 31-35-2-4 was amended March 11, 2024, to provide in part:(c) A petition filed under subsection (a) must allege:(1) the existence of one (1) or more of the circumstances described in subsection (d);(2) that there is a satisfactory plan for care and treatment of the child; and(3) that termination of the parent-child relationship is in the child's best interests.(d) A petition filed under subsection (a) must allege the existence of one (1) or more of the following circumstances:* * * * *(3) That 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.(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child ․

3.   Although Mother also challenges the trial court's finding that continuation of the parent-child relationship posed a threat to the Children's well-being, we need not address that argument as the involuntary termination statute is written in the disjunctive and requires proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B). We also cannot say Mother develops a cogent argument regarding the trial court's conclusions that termination of her parental rights is in the Children's best interests or that there is a satisfactory plan for the care and treatment of the Children. Accordingly, we do not address those conclusions.

Brown, Judge.

Altice, C.J., and Tavitas, J., concur.