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

MEMORANDUM DECISION

Case Summary

[1] L.B. (“Mother”) and D.B. (“Father”) (collectively, “Parents”) are the parents of S.B. (“Child”). Mother and Father each have extensive criminal histories, and Mother has a substantial history with the Indiana Department of Child Services (“DCS”). As it relates to Child, DCS became involved with the family in May of 2022, after Child had tested positive for various illegal substances at birth. Child was removed from Mother's care and placed in Father's care, with the stipulation that he not allow Mother unsupervised access to Child. Father violated the stipulation multiple times. In August of 2022, Child was removed from Father's care and placed in a pre-adoptive foster home, where she has remained for the duration of the underlying case.

[2] Child was found to be a child in need of services (“CHINS”) in October of 2022. At that time, Parents were ordered to complete certain services. Although Parents participated in some of the court-ordered services, neither successfully completed services. DCS eventually petitioned to terminate their parental rights to Child. Parents were each incarcerated on the first day of the evidentiary hearing, which was held in May of 2024. Father moved to continue the proceedings, arguing that he was likely to be sentenced to purposeful incarceration and could potentially receive a sentence modification in approximately one year if he were to successfully complete his purposeful-incarceration programming. The juvenile court denied Father's motion. Following conclusion of the evidentiary hearing, the juvenile court terminated Parents’ parental rights to Child. Parents each challenge the juvenile court's order on appeal. We affirm.

Facts and Procedural History

[3] Parents are the biological parents of Child.¹ Both suffer substance-abuse issues and have lengthy criminal records, including arrests, convictions, and probation violations before and during this case.

[4] DCS became involved with the family in May 2022, after receiving a report that Child's umbilical-cord tissue had tested positive for norbuprenorphine, naloxone, aminoclozepam, and fentanyl at the time of Child's birth. Child required treatment in the NICU for withdrawal symptoms and meconial aspiration. DCS removed Child from Mother's custody upon Child's release from the hospital and placed her in Father's care with the stipulation that he would not allow Mother unsupervised access to Child. DCS filed a CHINS petition on June 7, 2022.

[5] Child was removed from Father's care after DCS filed three different motions alleging that he was allowing Mother to see Child without “a qualified third-party visit supervisor present.” Tr. Vol. II p. 56. Upon her removal from Father's care, Child was placed with the pre-adoptive placement, where she has remained for the duration of the case. On October 11, 2022, the juvenile court adjudicated Child to be a CHINS. Following a dispositional hearing, the juvenile court ordered Parents, inter alia, to maintain suitable, safe and stable housing; secure and maintain a legal and stable source of income; refrain from using illegal drugs; obey the law; complete a substance-abuse assessment and successfully complete all treatment recommendations; submit to random drug screens; and attend all scheduled visitations.

[6] Mother failed to successfully complete services and continued to test positive for illegal drugs. DCS Family Case Manager (“FCM”) Elijah Knepper lost contact with her in May of 2023. Mother “did not make more than fifty percent of the offered visits.” Mother's App. Vol. II p. 14.

[Mother] submitted twenty[-]four (24) drug screens. During the course of the case, while not incarcerated, [Mother] had approximately 53 weeks in which she was available to participate in screens. Of the 24 screens, nineteen (19) were positive for unprescribed substances.․ The last screen submitted was on June 5, 2023, and it was positive for benzodiazepine, fentanyl and norfentanyl.

Mother's App. Vol. II p. 14.

[7] Father's compliance with the dispositional order was also inconsistent. Although Father attended three home-based therapy sessions, the service referral was closed out due to non-engagement. Father initially did well during his solo supervised visitation with Child. However, when he and Mother “were together in the visits, the quality of the visits declined.” Mother's App. Vol. II p. 16. Father's bond with Child eventually waned and Father became more distracted in visits. “In total, [Father] had approximately fifty percent participation in visits.” Mother's App. Vol. II p. 16. Father also failed to regularly submit negative drug screens.

He had 48 weeks of available drug screen opportunities while not incarcerated. He failed to submit to a screen for 23 weeks, which are presumed positive. He submitted 24 negative screens, all of which were prior to May 2023. He stopped submitting screens in May, and did not communicate well with FCM Knepper after his arrest in June of 2023.

Mother's App. Vol. II p. 16.

[8] On October 16, 2023, DCS filed a petition to terminate the parent-child relationship between Parents and Child. The juvenile court conducted an evidentiary hearing on May 8, and August 26, 2024. Parents were both incarcerated as of the dates of the evidentiary hearing. At the outset of the evidentiary hearing on May 8, 2024, Father moved for a continuance, arguing that he anticipated being sentenced to purposeful incarceration for his pending criminal case and, if he were to successfully complete purposeful-incarceration programming, he would likely receive a sentence modification that would enable him to be available to care for Child sooner. DCS and the court-appointed special advocate (“CASA”) objected to the continuance, which was denied by the juvenile court. DCS presented evidence of Parents’ failure to comply with the dispositional order and inability to care for Child. Parents also acknowledged their substance-abuse issues.

[9] At the time of the hearing, Child had been out of Parents’ care for approximately twenty-four months. Child had a “very strong bond” with placement, which was the only family that she had ever known. Tr. Vol. II p. 81. CASA Jennifer Foutty testified that termination of Parents’ parental rights was in Child's best interests. CASA Foutty indicated that Child was doing “[r]eally well” in her pre-adoptive placement, stating that

she has matured tremendously in the past 6 months and she's walking and talking and very loving, um, she's a, she's growing up very nicely. And she did have some problems at the beginning which ․ have been remedied at this point, um, the doctor gives the okay, so she's doing extremely well. Has a great bond with that family.

Tr. Vol. II p. 90. CASA Foutty described Child as a “happy, smiling little girl” who is “just a joy[.]” Tr. Vol II p. 91. CASA Foutty reiterated that termination of Parents’ parental rights was in Child's best interests because she required permanency and it had already been “over two years of her not having permanency.” Tr. Vol. II p. 92. The juvenile court issued its order terminating Parents’ parental rights to Child on November 12, 2024.

Discussion and Decision

[10] “The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children.” Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). Although parental rights are of a constitutional dimension, the law allows for the termination of those rights when parents are unable or unwilling to meet their parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Parental rights, therefore, are not absolute and must be subordinated to the best interests of the child. Id. Termination of parental rights is proper where the child's emotional and physical development is threatened. Id. The juvenile 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.

I. Denial of Father's Motion for a Continuance

[11] Father contends that the juvenile court abused its discretion in denying his motion for a continuance of the evidentiary hearing.

The decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court. We will reverse the trial court only for an abuse of that discretion. An abuse of discretion may be found in the denial of a motion for a continuance when the moving party has shown good cause for granting the motion. However, no abuse of discretion will be found when the moving party has not demonstrated that he or she was prejudiced by the denial.

Rowlett v. Vanderburgh Cnty. Off. of Fam. & Child., 841 N.E.2d 615, 619 (Ind. Ct. App. 2006) (internal citations omitted), trans. denied.

[12] In arguing that he had demonstrated good cause for granting a continuance, Father claims that he had been “promised significant favorable change in his incarceration status upon his completion of Recovery While Incarcerated/Purposeful Incarceration.” Father's Br. p. 9. Father acknowledged, however, that he “did not know exactly when he would be permitted to begin Recovery While Incarcerated[.]” Father's Br. p. 9. Father further claimed that there was a “lack of any dire or specific need for permanency, considering that [Child] had been in the same placement since being removed from [his] care.” Father's Br. p. 9.

[13] In support, Father cites Rowlett, in which the father was scheduled to be released from incarceration six weeks after the scheduled dispositional hearing. 841 N.E.2d at 619. The children at issue in Rowlett had been placed in a familial placement and we noted that the requested continuance until the father was released from incarceration “would have had little immediate effect upon the children.” Id. Father also cites In re A.S., 100 N.E.3d 723, 726 (Ind. Ct. App. 2018), in which the father had requested a continuance of the evidentiary hearing that was scheduled to occur approximately three weeks before he completed purposeful incarceration and earned a modified sentence. In this case, unlike in A.S. and Rowlett, Father did not have an imminent release or sentence-modification date. Granting Father's request for a continuance until he had the opportunity to participate in purposeful incarceration and receive a potential sentence modification would require a significant continuance, of unknown duration, of the termination proceedings. Father himself indicated that purposeful-incarceration programing would generally take “some where [sic] around a year” and, if he successfully completed the programing, he would then likely receive a sentence modification that might present him with the opportunity to be in a position to parent Child. Tr. Vol. II p. 6. In support of his request for a continuance of, seemingly, at least a year, Father stated that he was “not aware of any pressing need for” permanency. Tr. Vol. II p. 4.

[14] DCS and the CASA objected to Father's requested continuance. DCS indicated that despite Father's assertion that the termination of his parental rights was being sought merely because of incarceration, termination was being sought because of “the events leading up to his incarceration.” Tr. Vol. II p. 6. CASA Foutty argued that Father had had “plenty of time before incarceration to engage in services” and that he had “completely disengaged from services” prior to his incarceration. Tr. Vol. II p. 6.

[15] Upon review, we cannot say that Father showed good cause for the requested continuance. Father did not have an imminent release date but rather was requesting an open-ended continuance of “some where [sic] around a year.” Tr. Vol. II p. 6. Moreover, his potential early release from incarceration was dependent upon his successful completion of purposeful-incarceration programing. Despite Father's confidence in his ability to successfully complete programing, there was no guarantee that he would do so.

[16] We have previously “recognized that delays in the adjudication of a case impose significant costs upon the functions of government as well as an intangible cost to the lives of the children involved.” Matter of C.C., 170 N.E.3d 669, 678 (Ind. Ct. App. 2021) (internal quotation omitted). At the time of Father's request, Child was two years old and was bonded to her pre-adoptive family, i.e., the only family that she had ever known. Despite Child's young age, a lengthy, open-ended delay in proceedings would undoubtedly impact her negatively. CASA Foutty reiterated the importance of permanency and testified to Child's close bond with her pre-adoptive family. In testifying that she did not believe that the juvenile court should wait to see if Father would be able to successfully complete purposeful-incarceration programing, CASA Foutty noted that the “length of time” for Father's requested delay was unknown, and that Child was “growing up quickly and I believe she needs permanency.” Tr. Vol. II p. 92.

[17] Even prior to his incarceration, Father had disengaged from services and had failed to maintain a relationship with Child. We agree with DCS that Father's “lack of effort and commitment to make the changes necessary to reunify with Child significantly contrasts with the effort shown by the fathers in A.S. and Rowlett.” Appellee's Br. p. 24 (emphases in original). Father has failed to show good cause for the requested continuance. As such, we conclude that the juvenile court acted within its discretion by denying Father's request for a continuance of an unknown duration.

II. Sufficiency of the Evidence to Support the Juvenile Court's Judgment

[18] Both Mother and Father challenge the sufficiency of the evidence to support juvenile court's judgment. In reviewing termination proceedings on appeal, we will not reweigh the evidence or assess the credibility of the witnesses. In re Involuntary Term. of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile court's decision and reasonable inferences drawn therefrom. Id. Where, as here, the juvenile court includes findings of fact and conclusions thereon in its order terminating parental rights, our standard of review is two-tiered. Id. First, we must determine whether the evidence supports the findings and, second, whether the findings support the legal conclusions. Id.

[19] In deference to the juvenile court's unique position to assess the evidence, we set aside the juvenile court's findings and judgment terminating a parent-child relationship only if they are clearly erroneous. Id. “A finding of fact is clearly erroneous when there are no facts or inferences drawn therefrom to support it.” Id. A judgment is clearly erroneous only if the legal conclusions made by the juvenile court are not supported by its findings of fact, or the conclusions do not support the judgment. Id.

[20] Mother and Father each contend that the evidence is insufficient to support the termination of their respective parental rights to the Child. DCS was required to prove the following:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.․

(iii) The child has been removed from the parent ․ for at least fifteen (15) months of the most recent twenty-two (22) months ․ as a result of the child being alleged to be a child in need of services․

(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).² Father argues that the evidence is insufficient to prove subsections (B) and (C), while Mother argues that the evidence is insufficient to prove subsection (C).

A. Subsection (B)

[21] As it relates to subsection (B), the juvenile court concluded that there was a reasonable probability that the conditions that led to Child's removal from Parents’ care would not be remedied.

When determining whether a reasonable probability exists that the conditions justifying a child's removal and continued placement outside the home will not be remedied, the trial court must judge a parent's fitness to care for his or her children at the time of the termination hearing, taking into consideration evidence of changed conditions. In so doing, the trial court may consider the parent's response to the services offered through [DCS]. A pattern of unwillingness to deal with parenting problems and to cooperate with those providing social services, in conjunction with unchanged conditions, support a finding that there exists no reasonable probability that the conditions will change. Additionally, [DCS] was not required to rule out all possibilities of change; rather, it needed to establish only that there is a reasonable probability that the parent's behavior will not change.

In re B.J., 879 N.E.2d 7, 18–19 (Ind. Ct. App. 2008) (internal citations and quotations omitted), trans. denied.

[22] The juvenile court found that Father had failed to complete court-ordered services. Specifically, despite having “no barriers to engagement or attendance” in home-based therapy, Father attended only three sessions and the “referral was closed out due to non-engagement.” Mother's App. Vol. II p. 54. Furthermore, although Father had initially demonstrated positive parenting traits and a bond with Child during visitation, Father had not maintained this progress, his bond with Child had waned, he had only attended approximately fifty percent of his scheduled visits with Child, and, by the time of the evidentiary hearing, he “had not visited with [Child] for a substantial amount of time[.]” Mother's App. Vol. II p. 55. Father also failed to maintain sobriety and had been incarcerated numerous times during the pendency of the proceedings. Father does not challenge any of the juvenile court's numerous findings, which we therefore accept as true. See Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind. Ct. App. 2020) (providing that unchallenged findings must be accepted as true), trans. denied.

[23] In concluding that the conditions that led to Child's removal from Father's care were unlikely to be remedied, the juvenile court stated the following:

Initially, as stated above, [Child] was removed from the care of [Mother] due to [Mother's] drug use and [Child's] toxic cord tissue at birth. She was placed with [Father]. [Child] was removed from [Father] primarily because [he] did not comply with court orders preventing [Mother] from [having] unsupervised contact with [Child]. After removal, [Father] did not achieve sobriety and did not participate in services to the extent necessary to have [Child] returned to his care. Instead of remaining in sober living after Transitions, he left to reside with [Mother]. In addition, when given the opportunity to participate in further treatment, he left treatment to care for [Mother] and he resided with her, while [she] was struggling with substance use.

Subsequently, in the spring of 2023, [Father] appeared to have suffered a relapse in use, at a time when he was not incarcerated, and had access to substance[-]abuse treatment, therapy, and home[-]based services intended to support him in sobriety. In April and May of 2023, he stopped engaging in services, and could not offer an explanation for that retreat. The quality of his visits with [Child] declined. He also acquired new criminal charges during the pendency of the underlying CHINS case. [Father's] actions in the CHINS case reflected a continuation of a pattern of use, treatment, relapse and criminal activity which has plagued [Father] in his young adulthood. Looking at [Father's] habitual pattern of criminal conduct and substance use while being given the opportunity to participate in treatment, the Court concludes that the conditions that led to removal will not be remedied.

[Father] asks the Court to consider K.E. v. Ind. Department of Child Services in support of his objection to termination. In K.E., the Indiana Supreme Court held that the trial court erred in terminating the parental rights of an incarcerated parent. The parent was incarcerated at the time of the child's removal, and had not had the opportunity to participate in services. The parent provided evidence of possible release two years following the termination hearing. The Court held that this factor alone could not support a termination, and also pointed to the multiple services that the father had completed during incarceration and the bond that he had been able to maintain with two of children with nightly phone calls and visits. K.E. v. Ind. Dept. of Child Services, 39 N.E.3d 641, 648 (Ind. 2015).

The Court finds that K.E. does not apply. While this Court recognizes that [Father] may have a short amount of time left in his period of incarceration, and intends to participate in services while incarcerated, unlike the father in K.E., [Father] has had an opportunity to participate in services prior to incarceration and failed to do so. [Father] had periods of time in the two years since [Child] was removed from his care to remain engaged in services. Up to April or May of 2023, [Father] was engaged and making progress in services and sobriety. After May, however, he relapsed and disengaged in services. He then was incarcerated and released to an inpatient program that he didn't complete. While the Court acknowledges that initially [Father] showed positive progress in parenting [Child] and developed a bond with her, his disengagement and lack of continuity was a detriment in maintaining that bond. And, unlike the father in K.E., incarceration was not the primary reason for removal from [Father]. He failed to follow court orders, harbored [Mother] while she was actively using, and then relapsed.

Mother's App. Vol. II pp. 58–59 (emphases in original except for last two which were added).

[24] In challenging the sufficiency of the evidence to support the termination of his parental rights, Father again relies on the Indiana Supreme Court's opinion in K.E. For the reasons stated by the juvenile court, we agree that K.E. is distinguishable from the instant matter. Father had the opportunity to engage in services during periods in which he was not incarcerated but failed to either consistently participate in or successfully complete the court-ordered services. While Father asserts that he may be able to correct his parenting deficiencies by completing purposeful-incarceration programming, his assertions at most reflect a desire, not an indication of improved circumstances. Father's argument in this regard amounts to nothing more than an invitation to reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.

B. Subsection (C)

[25] We are mindful that in considering whether termination of parental rights is in the best interests of the child, the juvenile court is required to look beyond the factors identified by DCS and 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). In doing so, the juvenile court must subordinate the interests of the parents to those of the children involved. Id. “A parent's historical inability to provide a suitable environment along with the parent's current inability to do the same supports a finding that termination of parental rights is in the best interests of the children.” Lang v. Starke Cnty. Off. of Fam. & Child., 861 N.E.2d 366, 373 (Ind. Ct. App. 2007), trans. denied.

The [juvenile] court need not wait until the child is irreversibly harmed such that her physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Additionally, a child's need for permanency is an important consideration in determining the best interests of a child, and the testimony of the service providers may support a finding that termination is in the child's best interests.

In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (internal citations omitted).

[26] Parents each challenge the juvenile court's conclusion that termination of their respective parental rights was in Child's best interests. In concluding that termination of Parents’ parental rights was in Child's best interests, the juvenile court stated the following:

Looking at the totality of the circumstances for [Child], the Court concludes that termination of parental rights is in her best interests. [Child] was removed from [Mother] shortly after birth, and [Mother] has not demonstrated any ability to care for [Child] or ability to achieve sobriety. [Mother's] criminal cases and incarceration make it difficult to determine when she will be available to reengage in services to address her substance use. There is no evidence that [Child] is bonded with [Mother], even if [Mother] feels differently about [Child] as her last child.

[Father] is not currently available to parent. [Child] was removed as a young infant of three months old. [Father's] disengagement from services and incarceration beginning in the spring of 2023 put a hold on his forward progress while [Child] continued to grow and become bonded to placement. Even if [Father] were to complete [recovery-while-incarcerated programming] and shorten his six year sentence, that is at least another six months for [Child] to continue to develop attachment to her placement. In the short visit that [Father] had with [Child] shortly before the last fact[-]finding date, it was evident that [Child] was not engaged with [Father]. The Court recognizes that a video visit with a two year old is not optimal, but these are the circumstances at hand.

[CASA Foutty] has observed [Child] with placement, and attested to [Child's] development and growth with placement. [Child] is bonded to placement as the primary parent she has known in her short life. [CASA] Foutty believes that adoption and termination of parental rights are in [Child's] best interests.

Mother's App. Vol. II p. 60.

[27] As the juvenile court noted, CASA Foutty testified that termination of Parents’ parental rights was in Child's best interests. CASA Foutty indicated that Child was doing “[r]eally well” in her pre-adoptive placement, stating that

she has matured tremendously in the past 6 months and she's walking and talking and very loving, um, she's a, she's growing up very nicely. And she did have some problems at the beginning which ․ have been remedied at this point, um, the doctor gives the okay, so she's doing extremely well. Has a great bond with that family.

Tr. Vol. II p. 90. CASA Foutty described Child as a “happy, smiling little girl” who is “just a joy[.]” Tr. Vol II p. 91. CASA Foutty reiterated that termination of Parents’ parental rights was in Child's best interests because she required permanency and it had already been “over two years of her not having permanency.” Tr. Vol. II p. 92. As the Indiana Supreme Court has recognized that “[p]ermanency is a central consideration in determining the best interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). In addition, FCM Knepper testified that Parents had each been offered multiple service programs aimed at reunification, but that in the more than two-year period since Child had been removed from their care, neither had successfully completed those services.

[28] CASA Foutty's and FCM Knepper's testimony established that Child was thriving in the safe and stable environment provided by foster parents, who wished to adopt her. Their testimony, coupled with the evidence establishing Child's need for permanency and that the conditions that led to Child's removal from Parents’ care were not likely to be remedied any time soon, is sufficient to support the juvenile court's conclusion that termination of Parents’ respective parental rights is in Child's best interests. See Lang, 861 N.E.2d at 374 (providing that the testimony of the case worker, guardian ad litem, or a court-appointed special advocate (“CASA”) regarding the children's best interests supports a finding that termination is in the children's best interests). Further, while Parents each cite claimed improvements that they had made in their ability to parent Child, their claims amount to nothing more than invitations to reweigh the evidence, which, again, we will not do. See In re S.P.H., 806 N.E.2d at 879.

[29] The judgment of the juvenile court is affirmed.

FOOTNOTES

1.   Mother has seven other children, all of whom have been subjects of previous CHINS cases and to whom Mother has consented to adoption.

2.   Although Indiana Code section 31-35-2-4 has been amended, effective March 11, 2024, the amended provisions do not apply to this case. Further, although the juvenile court referenced the amended version of Indiana Code section 31-35-2-4 in its order terminating Parents’ parental rights to Child, the juvenile court's reference to the wrong version of the statute is inconsequential given that the provisions at issue in this appeal are substantially the same under both versions of the statute.

Bradford, Judge.

Judges May and Mathias concur. May, J., and Mathias, J., concur.