L.S., Appellant-Respondent v. Indiana Department of Child Services, et al., Appellees-Petitioners (2025)

MEMORANDUM DECISION

Case Summary

[1] L.S. (Mother) appeals the involuntary termination of her parental rights to two of her minor children, I.S. and S.S. (collectively, the Children), which was entered after a factfinding hearing held in her absence.¹ Mother presents the following consolidated and restated issues for review:

1. Did the Indiana Department of Child Services (DCS) provide Mother with notice of the factfinding hearing?

2. Did the trial court abuse its discretion or violate Mother's procedural due process rights when it denied her motion to continue the factfinding hearing?

3. Is the termination order clearly erroneous?

[2] We affirm.

Facts & Procedural History

[3] I.S. and S.S. were born to Mother and Father (collectively, Parents) in October 2018 and May 2020, respectively. DCS became involved with the family shortly after I.S.’s birth and thereafter engaged in multiple assessments involving allegations of substance use, unstable housing, and domestic violence. DCS took the Children into emergency custody on July 30, 2021, and filed a CHINS petition on August 2, 2021, alleging that Parents had failed to provide the Children with a safe, stable, and appropriate living environment free from substance abuse and domestic violence. The specific allegations in the CHINS petition included:

c. Mother admitted using methamphetamine as recently as July 28, 2021, and Mother further stated she and Father use methamphetamine that Father purchases for them.

d. Mother submitted to an instant drug screen, and the preliminary results were positive for methamphetamine

e. Mother also admitted being homeless for the past three years stating she, Father and the Children have been “home jumping” since 2018 and have moved from state to state where they have resided in multiple shelters.

f. Mother also disclosed an extensive history of domestic violence with Father․.

g. Mother stated the most recent physical altercation with Father occurred on July 29, 2021, and Family Case Manager (FCM) Bantegeye Hakizimana observed Mother to have visible injuries, including bruises under her left eye, which Mother stated were the result of the altercation.

h. Additionally, Mother admitted the Children have not been seen by their primary care physician since she has given birth to them ․.

Exhibits Vol. I at 56 (some names altered).

[4] Thereafter, the parties entered into a mediated agreement, which the trial court approved at a hearing on September 30, 2021. The Children were then adjudicated CHINS based on Parents’ admissions, and the court proceeded directly to disposition. Pursuant to the agreement, the court ordered the Children's continued removal from Parents’ care and custody and ordered Parents to submit to random drug screens as directed by DCS, engage in home-based therapy and home-based case management, and follow all recommendations made by service providers.

[5] The initial permanency plan for the Children was reunification with Parents. Though Parents were “somewhat compliant” with the case plan in the beginning, they continued to have positive or missed drug screens. Id. at 79. Their parenting time was suspended by the court in July 2022 due to noncompliance, and the permanency plan was changed to adoption at a permanency hearing on September 26, 2022, which Parents did not attend.²

[6] At a review hearing on June 12, 2023, the court authorized supervised parenting time to recommence between Mother and the Children, as Mother had begun participating in some services but not consistently. Between June and September 2023, Mother exercised only one parenting time opportunity – a therapeutic visit with the Children in August, supervised by Danelle King, I.S.’s longtime therapist. After canceling several visits, Mother had one therapeutic visit in January and one in February 2024, after which King recommended that the visits cease based on Mother's behavior during visits and the negative effect the inconsistent visits were having on the Children.

[7] On February 21, 2024, DCS filed the instant petitions to terminate parental rights. Thereafter, at a review hearing in the CHINS proceedings on March 11, 2024, the court again suspended Mother's parenting time with the Children. The court found that despite Mother's participation in an outpatient substance abuse treatment program at Clean Slate, she continued to test positive for illegal drugs.³ The court indicated that it wanted to see thirty days of clean drug screens and a psychological evaluation.

[8] During the underlying CHINS matter, Parents had two subsequent children, T.G. and S.G. (collectively, Siblings). T.G. was born in September 2023, and S.G. was born in August 2024. Siblings were the subjects of open CHINS cases and remained out of Parent's care at the time of the termination factfinding hearing in this case, which took place on October 21, 2024.⁴

[9] When Mother failed to appear at the termination hearing, Attorney Roach made an oral motion for a continuance. Attorney Roach represented to the court that she had last spoken with Mother two weeks earlier, on October 7, and had told Mother that they needed to prepare for today's trial. The court asked whether they had discussed the trial date during their last discussion, and Attorney Roach responded: “I had told her so many times the date, I don't think we went back over the date, but I told her that it was critical that we prepare and she was supposed to contact me and she did not.” Transcript at 8. Upon further questioning by the court, Attorney Roach confirmed that her last contact with Mother “about the trial date” occurred sometime after a continuance that was issued on September 10, 2024. Id. Attorney Roach noted that Mother has a lot of cases and explained: “And I try to keep her well-informed of all the dates and I told her we needed to prepare, but she did not contact me․. And still has not contacted me.” Id. at 9. The court then asked whether Attorney Roach was “somewhat prepared to proceed” and she responded: “Yes, I talked with [Mother] about her providers, during that time, but I told her that was a more cursory discussion [and] we needed to have a more detailed discussion[.]” Id.

[10] DCS objected to a continuance, as did the guardian ad litem (the GAL). When denying the motion to continue, the trial court confirmed that, like Attorney Roach, neither the GAL nor FCM Angela Wilson had heard from Mother recently. The trial court also noted earlier in the hearing that DCS had filed “10-day letters on October 1st of this year for both of the parents.”⁵ Id. at 5; see also Appellant's Appendix at 183-84 (copy of the file-stamped notice that was sent to Mother at her home address, as well as to Attorney Roach).

[11] The hearing proceeded in absentia, with Attorney Roach representing Mother and cross-examining three of the six witnesses called by DCS. At the conclusion of the hearing, the trial court took the matter under advisement.

[12] On November 26, 2024, the trial court issued its order terminating Mother's parental rights to the Children. The order set out detailed findings of fact, including the following:

22. Dr. Daniel Westmoreland [a Licensed Clinical Psychologist] conducted a Clinical Interview and Assessment of Mother on September 22, 2024.

23. Based on the information provided by Mother, as well as the collateral information he was able to review, Dr. Westmoreland made treatment recommendations including a full psychological evaluation, individual therapy, substance abuse counseling, and home-based case management for Mother. Mother had previously been recommended to complete a psychological evaluation by the providers working with her following her September 30, 2021 disposition. Mother was previously Court ordered to complete the other services recommended by Dr. Westmoreland.

24. Dr. Westmoreland categorized each of the recommendations he made as an immediate or urgent need to determine the current status of Mother's mental health. Dr. Westmoreland was able to rule out a few conditions based on his interview and assessment with Mother, however he suspected Mother was suffering from a delusional disorder of some kind which, coupled with her history of methamphetamine use, necessitated a full psychological evaluation to provide an accurate diagnosis. Mother demonstrated several signs of delusional thinking while meeting with Dr. Westmoreland․.

25. James Meacham, MD is board certified in Addiction Medicine and Internal Medicine, and he is the Regional Medical Director at Clean Slate in Indiana․.

26. The program at Clean Slate is an outpatient program, with most of the patients receiving treatment for opioid addiction․.

27. Mother began treatment at Clean Slate late 2022 or early 2023 and she is still engaged in treatment there as of the date of the trial․. Despite participation in the Clean Slate program, Mother has continued to use illegal drugs as the CHINS Court found she had tested positive for opiates and/or methamphetamine in February and March 2024.

28. The Clean Slate providers recommend that Mother participate in counseling, have a recovery coach, maintain her other regular healthcare appointments, have community-based supports, and reside in a sober living environment. Based on the information Mother self-reported to Clean Slate, Mother does not have stable housing, is not regularly seeing her obstetrician or other medical providers, and does not have a recovery coach. Dr. Meacham believes that Mother has been reasonably consistent with treatment through Clean Slate, but acknowledges there is a lot of information regarding Mother that he does not know. Mother struggles with consistency and her lack of engagement and follow through concern him.

29. Sarah Krogulecki was Mother's home-based therapist from April 2023 until January 2024, when she closed out her services with Mother. Ms. Krogulecki determined Mother is in need of ongoing mental health treatment and that she suffers from a delusional disorder of some kind.

30. The goals Ms. Krogulecki established with Ms. Scott included empowerment work and addressing her own needs independently. Mother also worked on issues involving past domestic violence history with Father, how she could remain safe while living-with him, her substance abuse history, and her ongoing mental health needs.

***

32. Over time, Ms. Krogulecki became concerned about Mother's mental health ․. Mother stated she believed external forces were working against her. Mother discussed spirits and spiritual activity as well [as] demonic activity by Father's family and friends. Ms. Krogulecki observed Mother to become increasingly religion obsessed in her statements and beliefs and to lack follow through to achieve or accomplish anything on her own because she left all decisions to her God. Ms. Krogulecki observed Mother to have delusions of persecution, to believe some of her medications were tainted with urine, to believe that she was being followed, and to have devolving mental health during the time she worked with Mother.

33. Ms. Krogulecki provided resources to Mother for Coburn Place and the Julian Center, and she encouraged Mother in finding mental health supports and continue to work with her homebased case manager as well.

34. Ms. Krogulecki closed her services in January 2024 after several no shows and cancellations by Mother in December 2023. Ms. Krogulecki provided resources for Mother to attain her goals, but Mother did not follow through and instead ceased engaging in her therapy.

35. Ronda Gibson is Mother's home-based case manager and was referred to work with Mother in April 2024. Ms. Gibson is still meeting with Mother, but has observed her to make no sustainable progress with her goals.

36. The goals Ms. Gibson established with Mother included obtaining housing and employment, maintaining sobriety, and addressing her mental health needs. Over time, Ms. Gibson's main concerns for Mother involved ongoing domestic violence between parents and Mother's untreated or undertreated mental health. Ms. Gibson has observed Mother to display delusional thinking from April 2024 through the present.

37. When Ms. Gibson has been to the home Mother currently resides in, she has had numerous concerns regarding its cleanliness and safety. Ms. Gibson has observed a lot of traffic in and out of the home. At one time there was a dumpster in the driveway and trash strewn throughout the backyard and on another occasion, Ms. Gibson saw a man on a bike that looked like Father, but who stated he was Father's twin brother. Mother has admitted she and Father reside together in the home.

38. Ms. Gibson is concerned about the housing situation particularly with Father residing there, due to concerns over domestic violence between Mother and Father․. Ms. Gibson also observed bruises on Mother numerous times since April 2024 and when she asked about the cause of the bruises, Mother would say “me and Father.” Ms. Gibson was immediately concerned that Mother had been beaten by Father in August 2024 when Mother suffered a ruptured uterus which led to the premature birth of her youngest child, S.G. S.G. will have life long disabilities as a consequence of the complications involved in her birth. When Ms. Gibson directly asked Mother what happened and what cause[d] the obstetric complications, Mother refused to answer.

39. As of the date of this trial, Ms. Gibson is still working on housing and employment with Mother. Ms. Gibson believes, however, that Mother needs to adequately address her mental health needs or no progress she makes with housing or employment will be sustainable.

40. Ms. Gibson has no reason to believe that Mother's statements that “Cara” came from Colorado to take the Children away from her is based in fact. Similarly, Mother has told Ms. Gibson that she believes her infant son, T.G., is being sexually abused in foster care because “his breath smells like vagina.” Ms. Gibson also does not believe Mother's statement and concerns are based in fact. Ms. Gibson is concerned that Mother is delusional, and Ms. Gibson has observed Mother's mental health continue to deteriorate since they have worked together.

41. Ms. Gibson recommends Mother complete and follow the recommendations of a psychological evaluation. Ms. Gibson is concerned about Mother's stability, does not believe Mother is safe, and that Mother does not have the means and the ability to meet the needs of the Children.

42. Danelle King is I.S.’s home-based therapist and for a short time was the therapeutic supervised parenting time facilitator for Mother and the Children.

43. Ms. King was referred to be I.S.’s therapist in August 2021 and was referred for therapeutic supervised parenting time in August 2023, after the CHINS Court ordered that parenting time re-commence between Mother and the Children. Three (3) visits in total occurred, the first shortly after the referral, followed by several cancellations and missed visits by Mother. The last two (2) visits occurred in January 2024 and February 2024.

44. The visits were very difficult. The Children had not seen Mother for approximately a year and a half. S.S. did not recognize Mother, but I.S. did. Neither [ ] wanted to give Mother a hug and Ms. King encouraged Mother to let the Children approach her at their own speed. Mother brought her mother, the Children's maternal grandmother, to the visit without prior permission and Mother had to be re-directed that parenting time was designed to enhance and develop her bond with the Children and to enable her to understand their needs so she could provide safe and appropriate parenting.

45. At the visits in January 2024 and February 2024, Ms. King recommended that Mother allow the Children to get used to her and to allow them to play and have fun. Mother had to be re-directed regarding discussions of the future and making promises to the Children about having their own rooms when they come home and presents that she would get them. Mother also had to be re-directed regarding telling the Children to keep secrets. Mother told the Children that they “can't let anyone know dad is living with me.”

46. Ms. King closed the therapeutic supervised parenting time services in February 2024. Additionally, she recommended that visits be discontinued due to Mother's inconsistencies in services, lack of bond with the Children, and constant need for redirection to which Mother was not receptive.

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51. S.S. does not remember much about the time prior to her placement in foster care, however I.S. has a few core negative and unhealthy memories. Ms. King recommends continued therapy for the Children and believes it is ․ in the best interests of the Children to be adopted by their current foster parent. Ms. King has observed the bond to be natural between the Children and foster mother and the foster home provides structure and consistency that the Children need.

52. Angela Wilson is the FCM assigned to the CHINS case. She was assigned in September 2023.

53. FCM Wilson has made referrals for the services in which Parents were Court ordered to participate during the CHINS case, including two (2) for random drug screens, one (l) for substance abuse assessment, one (l) for clinical interview and assessment, one (l) for home-based therapy, and one (l) for home-based case management for Mother. Some referrals were still open when FCM Wilson was first assigned to the case, but she has ensured all of Mother's referrals are open and active at all times.

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56. FCM Wilson has held Child Family Team Meetings (“CFTMs”) with Mother. Mother has cancelled or failed to appear for numerous CFTMS.

57. FCM Wilson has had several interactions with Mother that caused her to have concern for Mother's mental health. These interactions included a phone call in September 2024 and a meltdown at a CFTM in which Mother accused DCS of taking all of her children for money and accusing the Children's placement of abusing, including sexually abusing, the Children. The team has no reason to believe any of those accusations against the Children's placement are true or that Mother's concerns are grounded in fact. FCM Wilson has observed Mother to express delusional ideas.

58. Toni Thompson is the GAL assigned to I.S.’s and S.S.’s CHINS cases and has worked with the Children since August 2021․.

59. Ms. Thompson had contact with Father when meeting with Mother in 2022, but otherwise Father has only been to one hearing within the last year or more and has not attended any CFTMs, has not participated in any services, and has not engaged in parenting time since 2022. There is no way to verify his sobriety and Ms. Thompson does not recommend any parenting time for Father. Ms. Thompson is not sure how much the Children remember about Father given their young ages and his complete lack of participation in the CHINS matter.

60. GAL Thompson has observed Mother to be more engaged with the Child and Family Team, but despite the team explaining expectations and the basis for the same, Mother has not consistently engaged with services or parenting time, nor made any meaningful or sustainable progress toward reunification.

61. When parenting time between Mother and the Children did start back up in 2023, the Children began having nightmares, tantrums, and displaying other signs of significant emotional dysregulation.

62. The GAL has visited with the Children at their foster home and has observed foster mother to be a constant support for them and always willing to do whatever needed for their wellbeing․. There is a Court Appointed Special Advocate (“CASA”) assigned to the case and the CASA has also observed the Children to be very bonded to their foster mother.

63. Neither FCM Wilson nor GAL Thompson believe Mother and Father should be given additional time to complete services and seek reunification because the case has been open three (3) years. Both of their youngest children, born since I.S.’s and S.S.’s CHINS cases opened, have been removed from Mother and Father for the same reasons and the same services continue to be in place. Ms. Thompson believes it is in the Children's best interest for Mother's and Father's rights to be terminated so that the Children can be adopted by their current pre-adoptive foster care placement.

64. The plan for the care and treatment of the Children is adoption by their preadoptive foster care placement.[6]

65. FCM Wilson and GAL Thompson believe that: 1) there is a reasonable probability that the conditions that led to the removal of the Children from their parents and the reasons for their continued placement outside of their custody will not be remedied; 2) continuation of the parent-child relationship between their Mother and Father and the Children poses a risk of harm to the Children; and 3) termination of Mother's and Father's parental rights is in the Children's best interests.

Id. at 39-49 (some names altered).

[13] Based on its findings, the trial court ultimately determined, among other things, by clear and convincing evidence that: there is a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside Parents’ home will not be remedied; there is a reasonable probability that the continuation of the parent-child relationships pose a threat to the well-being of the Children; termination of parental rights is in the Children's best interests; and adoption by their pre-adoptive placement is a satisfactory plan for the care and treatment of the Children. Accordingly, the trial court terminated the parent-child relationship between Parents and the Children.

[14] Mother now appeals. Additional information will be provided below as needed.

Discussion & Decision

1. Statutory Notice

[15] Mother contends that the termination order is void because the record does not show that she was served with proper notice of the termination factfinding hearing. Ind. Code § 31-35-2-6.5(b), pertaining to notice requirements in a termination proceeding, provides in relevant part:

At least ten (10) days before a hearing on a petition or motion under this chapter:

(1) the person or entity who filed the petition to terminate the parent-child relationship under section 4 of this chapter; or

(2) the person or entity who filed a motion to dismiss the petition to terminate the parent-child relationship under section 4.5(d) of this chapter;

shall send notice of the review to the persons listed in subsections (c) and (d).

Parents, of course, are among the list of individuals to whom DCS must generally send such notices,⁷ commonly referred to as ten-day notices. See I.C. § 31-35-2-6.5(c)(1).

[16] On appeal, Mother seems to suggest that proceedings are “statutorily and constitutionally infirm” and any resulting order “must be vacated” where DCS does not present evidence at the hearing that a ten-day notice was timely served on and received by the parent(s). Appellant's Brief at 21. This argument ignores well-established case law.

[17] As we reaffirmed in Matter of C.C., 170 N.E.3d 669 (Ind. Ct. App. 2021), failure to comply with the statutory ten-day notice requirement is a defense that must be asserted. Id. at 675 (quoting In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012)). Once placed in issue, DCS then bears the burden of proving compliance with the statute. Id.; see also H.K., 971 N.E.2d at 103 (“Although statutory notice ‘is a procedural precedent that must be performed prior to commencing an action,’ it is not ‘an element of plaintiff's claim.’ ”) (quoting In re T.W., 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005)).

[18] Here, Attorney Roach said nothing when, at the beginning of the hearing, the trial court expressly referenced the ten-day letters that DCS had filed on October 1, 2024, for both parents.⁸ And at no subsequent point during the hearing did Attorney Roach suggest that DCS had failed to provide Mother with the required statutory notice. Having never placed notice at issue in the trial court, Mother has waived the issue on appeal. See C.C.,170 N.E.3d at 676.

2. Denial of Motion to Continue

[19] Mother next challenges the trial court's denial of her day-of-hearing oral motion to continue. She contends that the denial constituted an abuse of discretion and thus violated her procedural due process right to a fundamentally fair hearing.

[20] A trial court's decision to grant or deny a motion to continue is generally reviewed for abuse of discretion. Id. (citing In re K.W., 12 N.E.3d 241, 244 (Ind. 2014)). “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.” Id.

[21] “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request was denied.” J.P. v. G. M., 14 N.E.3d 786, 790 (Ind. Ct. App. 2014) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).

[22] Here, the record establishes that two weeks before the termination hearing Attorney Roach spoke with Mother about the hearing and the “critical” need to prepare. Transcript at 8. Before this conversation, Attorney Roach had informed Mother “many times” of the hearing date. Id. Yet Mother did not maintain contact with Attorney Roach, and she failed to appear at the hearing without explanation. Similarly, Mother had not contacted FCM Wilson or the GAL in the days leading up to the hearing.

[23] Despite Mother's failure to maintain contact, Attorney Roach informed the trial court that she was “somewhat prepared” to represent Mother at the hearing, as she had had a “cursory discussion” with Mother about her providers. Id. at 9. We also note that Attorney Roach had been representing Mother in the underlying CHINS matter for over three years, as well as representing Mother in Siblings’ pending CHINS cases.

[24] Under the circumstances, we cannot say that the trial court abused its discretion by denying Mother's motion for a continuance, as Mother did not show good cause. That is, Attorney Roach was unable to explain Mother's failure to appear for the hearing of which Mother had been fully advised. Further, Mother was represented by counsel throughout the termination hearing, with Attorney Roach cross-examining several of the witnesses called by DCS.⁹ In balancing Mother's fundamental interest against the State's own compelling interest and “given the minimal risk of error from the trial court's decision to proceed in Mother's absence, where Mother was represented by counsel,” we conclude that the trial court did not violate Mother's right to due process by denying her motion to continue. C.C., 170 N.E.3d at 678.

3. Sufficiency of the Evidence

[25] Finally, Mother contends that the trial court's findings do not clearly and convincingly support the judgment. 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.

[26] 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). 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). Further, we must accept any unchallenged findings as true. See Matter of To.R., 177 N.E.3d 478, 485 (Ind. Ct. App. 2021) (quoting Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)), trans. denied.

[27] Although parental rights are of constitutional dimension, the law provides for the termination of these rights when parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008). In addition, a court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding the termination. In re J.W., Jr., 27 N.E.3d 1185, 1188 (Ind. Ct. App. 2015), trans. denied.

[28] Under the statutory authority applicable at the time the termination petitions were filed,¹⁰ 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[.]

Ind. Code § 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 the Children's best interests. I.C. § 31-35-2-4(b)(2)(C).

[29] We initially observe that Mother does not directly challenge any of the trial court's extensive findings of fact. She simply argues that we should reject all of them as “one-sided, crafted without her meaningful participation, and contrary to her due process rights.” Appellant's Brief at 27. This is a reiteration of the arguments rejected above. Because Mother does not argue that any of the findings are unsupported by the evidence presented at the termination hearing, we accept the findings as true. See To.R., 177 N.E.3d at 485.

[30] Turning to the trial court's conclusions, Mother first challenges the determination that DCS established by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the Children'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 [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).

[31] The trial court summarized the facts supporting its determination in this regard:

h. The conditions that led to the Children's removal or placement and retention outside the home of Mother are: A history of ongoing domestic violence with Father; Mother's refusal to adequately address her mental health, which has been observed by all providers working with her to be delusional and which completely compromises her ability to provide a safe home for the Children and meet their needs; Mother's denial and refusal to address domestic violence with Father; Mother's inability to demonstrate whether she has attained and can maintain sobriety; Mother's lack of stability including housing and a source of income to support herself and the Children; and Mother's lack of progress with her court ordered services to address ongoing safety concerns.

i. These conditions have not been remedied by [Mother] and there is a reasonable probability that these conditions will not be remedied, even if [she was] given additional time to remedy the conditions. The Children's CHINS cases have been open for over three (3) years. Parents should not be afforded additional time to complete services.

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k. Mother did not consistently engage in nor complete the services that could have helped her adequately address her mental health needs, has not addressed the domestic violence concerns existing between she and Father, has not completed a substance abuse treatment program successfully, has not demonstrated sustained sobriety, and has not acquired stable and suitable housing and income to support herself and the Children. No one on the team has recommended parenting time with Mother and the Children be reinstated since its second suspension by the CHINS Court in March 2024.

Appellant's Appendix at 51-52.

[32] The trial court's determination that the conditions resulting in the Children's removal and continued placement outside Mother's home are not likely to be remedied is clearly supported by the court's findings and the evidence, and Mother makes no attempt to explain otherwise on appeal.¹¹ Indeed, she acknowledges that if we were to reverse, the Children would remain out of her care because she has yet to establish a safe home for them.

[33] Finally, Mother challenges the trial court's determination that termination is in the Children's best interests. When making a best-interest determination, a trial court must look at the totality of the evidence and, in doing so, subordinate the parent's interests to those of the child, with the child's need for permanency being a central consideration. See Ma.H., 134 N.E.3d at 49. Further, “the right of parents to raise their children should not be terminated solely because there is a better home available for the children.” In re V.A., 51 N.E.3d 1140, 1151 (Ind. 2016). This is because termination is intended as a last resort, available when all other reasonable efforts have failed. Id. at 1151-52.

[34] The trial court explained its best-interest determination as follows:

e. As discussed in detail herein and above, Mother has not demonstrated the ability to provide [the Children] with a permanent, safe, and stable home environment and to provide for the Children's long-term and short-term needs.

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g. Both the FCM and the GAL, as well as the Children's therapist, believe that the termination of parent-child relationship between Mother and Father and the Children and the adoption of the Children by their [pre-adoptive foster care] placement is in the Children's best interests.

Appellant's Appendix at 55-56.

[35] “Mother respectfully urges that there would be ‘little harm’ in allowing her additional time to attend and participate in a Fact-Finding Hearing and to work towards reunification under her other ongoing CHINS cases.” Appellant's Brief at 29. We cannot agree. The trial court's extensive findings show that the Children have remained out of Mother's care since July 2021, and despite over three years of available services, Mother failed to make progress toward remedying the reasons for the Children's removal. In fact, Siblings were each subsequently removed from her care shortly after their own births for the same reasons. The Children have no bond with Mother, whom they have not seen since February 2024 and before that time only on an extremely limited basis due to Mother's inconsistency with attending supervised visits. After so long, the Children deserve permanency and the ability to be adopted by their pre-adoptive placement, where they have lived and thrived since August 2021.¹²

[36] Judgment affirmed.

FOOTNOTES

1.   J.S. (Father) does not participate in this appeal, nor did he participate below. Father maintained no meaningful contact with his court-appointed attorney, who was permitted to withdraw at the beginning of the termination factfinding hearing.

2.   Mother did not attend most of the CHINS review and permanency hearings, but she was represented by her appointed attorney, Angela Roach (Attorney Roach).

3.   Mother tested positive for oxycodone, opioids, and buprenorphine on February 21, 2024. Thereafter, she tested positive for buprenorphine on March 8 and methamphetamine and hydrocodone on March 12.

4.   The CHINS petition relating to T.G. was filed in April 2024, and T.G. was adjudicated a CHINS on July 15, 2024. The CHINS petition relating to S.G. was filed on September 7, 2024, shortly after S.G.’s birth.

5.   The court then stated, “I'm sure those [letters] were served upon counsel as well.” Id. at 5.

6.   The Children have been in the same preadoptive home since August 2021.

7.   I.C. § 31-35-2-6.5(h), which is not applicable here, provides an exception to this notice requirement where the parent of a safe haven infant does not disclose the parent's name or indicates that the child is being abandoned.

8.   Mailing the ten-day notice to a parent's last known address is sufficient to comply with the notice statute. See C.C.,170 N.E.3d at 676. Here, the file-stamped ten-day notice contained in the appellate record shows that it was sent to Mother at her home address. See Appellant's Appendix at 183.

9.   Much of Mother's argument proceeds on the notion that the trial court entered a default judgment against her. It did not. Seven witnesses were called, and twenty-six exhibits were admitted into evidence. Attorney Roach raised successful objections to certain testimony and exhibits and cross-examined serval witnesses. This case involved neither a default judgment against Mother nor a summary proceeding. Cf. Thompson v. Clark Cnty. Div. of Fam. & Child., 791 N.E.2d 792, 794, 796 (Ind. Ct. App. 2003) (reversing on due process grounds where, in mother's absence and over her counsel's objection, the termination hearing was held “as a summary proceeding where no witnesses testified and no cross-examination was conducted” and observing that the “court could have conducted the final termination hearing in her absence where witnesses testified, cross-examination was conducted, and exhibits were properly admitted into evidence”), trans. denied.

10.   Our legislature made extensive changes to Ind. Code § 31-35-2-4, which became effective March 11, 2024. DCS filed the petitions in February 2024, under the prior version of the statute.

11.   Because I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not address the trial court's additional conclusion that continuation of the parent-child relationship would pose a threat to the safety and well-being of the Children. See A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1158 n.6 (Ind. Ct. App. 2013), trans. denied.

12.   Mother's reliance on H.G. v. Ind. Dep't of Child Servs., 959 N.E.2d 272 (Ind. Ct. App. 2011), trans. denied, is misplaced. In that case, the mother had been “cooperative and involved” in the CHINS cases, had a “strong bond” with her children, maintained regular contact with them, took advantage of opportunities to improve herself while incarcerated, and had made every effort to earn an early release from prison. Id. at 292. Because no adoptive family had been identified and the children had recently been placed in a new foster home, this court noted that there would be “little harm” in giving the mother additional time to continue working toward reunification. Id. at 293. “The record simply [did] not show that terminating [parental] rights [would] do anything to increase the children's sense of stability.” Id. These circumstances are entirely different than those presented here.

Altice, Chief Judge.

Judges Pyle and DeBoer concur. Pyle, J. and DeBoer, J., concur.