H.B. (Father) and R.R. (Mother), Appellants-Respondents v. Indiana Department of Child Services, Appellee-Petitioner (2025)

MEMORANDUM DECISION

[1] R.R. (“Mother”) and H.B. (“Father,” and together with Mother, “Parents”) separately appeal the involuntary termination of their parental rights to their minor children Hak.B, Hal.B., and H.R. (“the Children”). We affirm.

Facts and Procedural History

[2] Parents are the biological parents of H.R., born in July 2020, Hal.B., born in September 2021, and Hak.B., born in May 2023. On September 10, 2021, the Howard County Department of Child Services (“DCS”) received a report that Hal.B was born positive for opiates. During the subsequent investigation, Mother admitted to using an old opiate prescription for a toothache. Father also blamed the old prescription for the opiate exposure and stated that neither he nor Mother realized it would affect the baby. Hal.B experienced withdrawal symptoms from September 4 to September 11, 2021. Mother agreed to participate in a program of Informal Adjustment; however, on April 8, 2022, DCS filed a request to discharge the Informal Adjustment as unsuccessful because Mother failed to cooperate with service providers. The trial court granted the request and discharged the Informal Adjustment as unsuccessful.

[3] On May 8, 2023, DCS received a new report indicating that, upon birth, Hak.B's cord blood tested positive for methamphetamine, nordiazepam, and diazepam. During the subsequent investigation, Mother admitted to using illegal substances but claimed she did so before realizing she was pregnant with Hak.B, and she insisted that she stopped using drugs after learning of her pregnancy. However, she refused to comply with a voluntary drug screen, stating that she would submit to a screen during her next meeting with DCS. Mother proceeded to avoid all contact with DCS for several weeks until May 27, 2023, when she refused to submit to a drug screen or sign a new Informal Adjustment, stating specifically that she did not want to participate in an Informal Adjustment because she did not want to submit to random drug screens.

[4] On June 5, 2023, DCS filed petitions alleging the Children were children in need of services (“CHINS”) pursuant to Ind. Code §§ 31-34-1-1 and 31-34-1-10.¹ The court held an initial hearing that same date. Both parents denied the CHINS allegations. The Children remained placed in the home pending drug screen results. The results revealed that both Mother and Father tested positive for methamphetamines and amphetamines and Children were removed from the home and placed into relative care. Following a detention hearing on June 12, 2023, the court ordered the continued removal of the Children from Parents’ care.

[5] The court held a factfinding hearing on July 31, 2023, following which the court adjudicated the Children as CHINS. The court held a dispositional hearing on August 28, 2023. The court ordered Parents to participate in reunification services including orders that they: maintain weekly contact with DCS; enroll in recommended programs; keep all appointments with DCS and service providers; maintain suitable, safe, and stable housing; refrain from using all illegal controlled substances; obey the law; complete a parenting assessment and any recommendations; complete substance abuse and psychological assessments and any recommendations; submit to random drug screens; and attend visits with the Children.

[6] The court held a review hearing on November 27, 2023. As of that date, Parents had not attended any visits with the Children, had tested positive for illegal substances on multiple drug screens, and had missed numerous drug screens. Both Parents continually missed several appointments with service providers and neither Parent was addressing his or her ongoing substance abuse. Neither Mother nor Father had consistently participated in services, each making excuses for noncompliance but failing to provide any proof as to the veracity of those excuses. Mother was a “no show” for her scheduled substance abuse assessment, and while Father attended his assessment, he failed to follow-through with recommended treatment. Mother's Appendix Volume II at 130. Both Parents blamed many of their participation failures on their poor health, reporting that they had “infestations and mold in their home” and that they each had contracted “dermatitis and scabies.” Id. at 131.

[7] On February 26, 2024, the court held another review hearing. Parents continued to blame their alleged medical conditions for their failure to participate in services. DCS closed the referral for home-based services for both Parents due to lack of compliance and the number of missed appointments.

[8] On May 22, 2024, DCS filed a verified petition for the involuntary termination of the parent-child relationship between Parents and the Children. On June 3, 2024, the court held an initial hearing on the termination petitions. The court noted that during the preceding three months, Mother and Father missed the vast majority of their random drug screens. Mother missed all but three of her screens and, of those three, only one returned negative for all substances. Father also missed all but three of his screens and, of those three, each returned positive for methamphetamines and amphetamines at “alarmingly high levels.” Id. at 132. Neither Parent had visited with the Children during the entire review period. On June 5, 2024, the court approved a concurrent permanency plan of reunification and adoption.

[9] During a family team meeting with service providers on July 3, 2024, Parents admitted that they continued to use illegal drugs and both Parents tested positive for illegal substances. In late July 2024, just weeks before the scheduled termination hearing, Parents finally enrolled in separate rehabilitation programs to address their addiction issues.

[10] The trial court held a factfinding hearing on August 19, 2024. At the time of the hearing, Mother and Father were still each involved in rehabilitation programs but neither had completed treatment. DCS presented the testimony of Family Case Manager Stacy Hawkins, Family Case Manager Gabrielle Calobrace (“FCM Calobrace”), Court Appointed Special Advocate Lucreta Olive (“CASA Olive”), and Mother. Father testified on his own behalf.

[11] On September 30, 2024, the court entered its findings of fact, conclusions thereon, and 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, that being adoption.

Discussion

[12] Parents each challenge the sufficiency of the evidence to support the termination of their parental rights. Regarding termination of parental rights, Ind. Code § 31-35-2-4 ² provides in pertinent part that DCS must allege as follows:

(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]

* * * * *

(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․

[13] 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). 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. To the extent Parents do not challenge the court's findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous), trans. denied.

[14] Both Parents challenge the trial court's conclusion that there is a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside the home will not be remedied. In determining whether the conditions that resulted in the Children's removal will not be remedied, we engage in a two-step analysis. See E.M, 4 N.E.3d 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 the children'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.

[15] The record reveals that the Children were removed from Parents’ care due to two of the Children being born substance exposed as well as Parents’ continued illegal drug use. The record further reveals that, during almost the entire course of the CHINS case, neither Parent sought or followed through with recommended treatment for his or her drug addiction. Rather, they continually made unverifiable excuses for their failures to participate in the services offered. Indeed, neither Mother nor Father was ever approved for visitation with the Children because of repeated positive illegal drug screens.

[16] As specifically noted by the trial court, neither Parent entered a rehabilitation program until more than thirteen months after the Children were removed from their care, and thirty-five months after the first of two of their Children tested positive at birth for illegal substances. Instead, the evidence demonstrates “these [P]arents have chosen to continue leading lives marked by instability, poor personal health, and drug addiction until” just prior to the termination factfinding hearing. Mother's Appendix Volume II at 134. As found by the court, “[w]hile entering rehabilitation is laudable,” this “eleventh-hour interest in recovery does not demonstrate” that Parents “have now adequately or substantially remedied the original reasons for these Children being removed from their care[.]” Id. at 135. Although Parents each point to their recent rehabilitation efforts as evidence that conditions will be remedied, the trial court was well within its discretion to balance Parent's recent improvements against habitual patterns of conduct to determine that there is a substantial probability of future neglect or deprivation. In light of the unchallenged findings and 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 Parents’ care will not be remedied.⁴

[17] Parents also challenge the trial court's conclusion that termination of their rights was in the Children's best interests. In determining the best interests of children, the trial court is required to look to the totality of the evidence. McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). The court must subordinate the interests of the parent to those of the children. Id. The court need not wait until children are irreversibly harmed before terminating the parent-child relationship. Id. The recommendation of a 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 children's best interests. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied. “A parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child[ren]’s best interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.

[18] FCM Calobrace opined that termination of Parents’ parental rights was in the Children's best interests. She stated that she had “low” confidence that Parents would ever be able to provide a “loving, caring, clean, drug free” home. Transcript Volume II at 23. She agreed that the Children had “waited long enough for their parents to have a forever home for them” and that “they shouldn't have to wait any longer on their parents to complete an 11th hour attempt at sobriety.” Id. at 27. She further testified that Children were “really bonded” to their current placement and that it provided them “a safe and sober, caring home.” Id. Similarly, CASA Olive opined that termination of Parents’ parental rights and adoption by the Children's current placement was in their best interests. She testified regarding Parents’ continuing housing instability, medical issues, and drug abuse, and noted that Parents had rarely followed through with any plans at making improvements or changes to their behavior. She agreed that the Children had “waited long enough for the parents to choose them over drugs and certain life styles[.]” Id. at 73. Based upon this testimony, in addition to evidence that the conditions resulting in removal will not be remedied, we cannot say the trial court clearly erred in finding that termination of Parents’ rights was in the Children's best interests.

[19] Finally, Father asserts that DCS failed to make reasonable efforts to preserve and/or reunify the family unit in the CHINS case resulting in a denial of due process. See In re J.K., 30 N.E.3d 695, 699 (Ind. 2015) (noting that when the State seeks to terminate parental rights, it must do so in a manner that meets the requirements of due process); In re T.W., 135 N.E.3d 607, 615 (Ind. Ct. App. 2019) (“[F]or a parent's due process rights to be protected in the context of termination proceedings, DCS must have made reasonable efforts to preserve and/or reunify the family unit in the CHINS case[.]”), trans. denied; see also Ind. Code § 31-34-21-5.5 (stating DCS is generally required to make reasonable efforts to preserve and reunify family during CHINS proceedings).

[20] However, Father did not make a due process claim to the trial court and raises it for the first time on appeal. When a parent makes a due process claim based on irregularities in the CHINS proceeding for the first time on appeal of a termination order, we may consider the claim waived. See In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (declining to consider mother's claimed violation of due process rights and noting “a party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal”). Accordingly, we decline to address Father's assertion.

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

[22] Affirmed.

FOOTNOTES

1.   Ind. Code § 31-34-1-1 provides:A child is a child in need of services if before the child becomes eighteen (18) years of age:(1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision:(A) when the parent, guardian, or custodian is financially able to do so; or(B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; and(2) the child needs care, treatment, or rehabilitation that:(A) the child is not receiving; and(B) is unlikely to be provided or accepted without the coercive intervention of the court.Ind. Code § 31-34-1-10 provides:Except as provided in sections 12 and 13 of this chapter, a child is a child in need of services if:(1) the child is born with:(A) fetal alcohol syndrome;(B) neonatal abstinence syndrome; or(C) any amount, including a trace amount, of a controlled substance, a legend drug, or a metabolite of a controlled substance or legend drug in the child's body, including the child's blood, urine, umbilical cord tissue, or meconium; and(2) the child needs care, treatment, or rehabilitation that:(A) the child is not receiving; or(B) is unlikely to be provided or accepted without the coercive intervention of the court.

2.   We note that Ind. Code § 31-35-2-4 was amended March 11, 2024. Pub. L. No. 70-2024, § 4 (eff. March 11, 2024). While Father cites to the prior version of the statute in his brief, as DCS filed the termination petition on May 22, 2024, there is no question that the amended version of the statute applies here.

3.   Although Ind. Code § 31-35-2-4(d) contains twelve items DCS may allege in a petition to terminate a parent-child relationship, in this case DCS alleges only subsections (3) and (4).

4.   Although Parents also challenge the trial court's finding that continuation of the parent-child relationship posed a threat to the Child's well-being, we need not address that argument as Ind. Code § 31-35-2-4(c)(1) provides that a termination petition must allege “the existence of one (1) or more of the circumstances described in subsection (d)[.]” (emphasis added). Subsection (d) similarly provides “A petition filed under subsection (a) must allege the existence of one (1) or more of the following circumstances.” Ind. Code § 31-35-2-4(d) (emphasis added). Accordingly, the involuntary termination statute, as amended, requires allegation and proof of only one of the twelve circumstances listed in Ind. Code § 31-35-2-4(d).

Brown, Judge.

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