IN RE: the Involuntary Termination of the Parent-Child Relationship of W.J. (Minor Child) (2025)

MEMORANDUM DECISION

Case Summary

[1] S.J. (“Mother”) appeals the trial court's termination of her parental rights to W.J. (“Child”) on petition of the Indiana Department of Child Services (“DCS”). Mother presents the consolidated and restated issues of: (1) Did DCS fail to present clear and convincing evidence to support the trial court's termination decision?; and (2) Did DCS fail to make reasonable efforts to preserve and reunify the parent-child relationship? We affirm.

Facts and Procedural History

[2] Mother gave birth to Child in June of 2017. Child's father is unknown. Beginning in 2019, Mother's decades-long struggle with alcohol and illegal substance use led to a series of criminal and child-welfare cases eventually culminating in this termination of parental rights action.

[3] Early in 2019, Mother was charged and convicted of misdemeanor operating while intoxicated (“OWI”) endangering a person and sentenced to 365 days, with all but eight days suspended to probation. She violated her probation by consuming methamphetamine and marijuana, and after failing to appear in court, was briefly incarcerated before being placed on home detention. That fall, Mother and Child began living at a domestic violence shelter called New Directions.

[4] In January 2020, while on a weekend pass from the program, Mother took Child to a house party where Mother consumed methamphetamine and marijuana. Police raided the party on suspicions of drug activity. Drugs and paraphernalia were present in the room with Mother and Child, and Child's diaper apparently had not been changed in some time. Mother was under the influence and unable to care for Child. She was arrested and charged with felony neglect of a dependent as to Child and felony possession of methamphetamine.

[5] First CHINS case – After Mother's arrest, DCS filed a petition alleging Child was a Child in Need of Services (“CHINS”). DCS removed Child from Mother's care and temporarily placed Child in relative care with the father of Child's older half-sibling (“Foster Father”).¹ On Mother's admission, Child was adjudicated a CHINS on February 24, 2020. At that point, the trial court returned Child to Mother's care at New Directions so long as Mother followed the rules and engaged in services at the shelter. In June, Mother pleaded guilty to the felony neglect of a dependent charge, and the criminal court sentenced her to thirty-six months, with twelve days executed and the balance suspended to twelve months of home detention followed by probation. Child was again removed from Mother and placed with Foster Father from June to November. During this time, Mother received alcohol and substance use treatment through Centerstone and ER Counseling. Mother was partially compliant with the dispositional order in September but fully compliant by December. After a trial home visit went well, the CHINS case closed on January 21, 2021, with Mother and Child reunified.

[6] In August 2021, while Mother was still on probation in the felony neglect case, Mother had a disagreement with a loved one, had “way too much to drink,” and got “extremely intoxicated” while Child was at school. Tr. Vol. 2 at 65. Mother was found wandering by the roadside in her undergarments, acting erratically, and making suicidal statements. She told police she believed Child was drowning in a creek. Fortunately, Child was found at home with Mother's then-boyfriend. Mother was arrested for public intoxication and disorderly conduct and hospitalized for suspected alcohol poisoning. Her blood alcohol concentration was 0.29%. Mother eventually pleaded guilty to both charges and was sentenced to time served. The State petitioned to revoke her probation in the felony neglect case.

[7] Second CHINS case – Based on these events, DCS alleged then four-year-old Child was a CHINS for the second time. Child was removed and placed with Foster Father. Mother tested positive for alcohol use again in September. During a Child and Family Team Meeting (“CFTM”), Mother told the DCS Family Case Manager (“FCM”) she drank a “fifth” of alcohol in one sitting, had a margarita just before the CFTM, and did not believe her drinking posed a safety issue for Child. See Exhibit Vol. 1 at 144. In December, Mother was arrested for felony OWI endangering a person. Mother pleaded guilty to the felony OWI and received a 545-day sentence, with ten days executed and the remainder suspended to probation, to be served consecutively to the felony neglect sentence. Her license was also suspended. DCS arranged for Mother to attend a month-long inpatient treatment program. Although Mother completed it, she “honestly didn't get much out of the program.” Tr. Vol. 2 at 77. Child was adjudicated a CHINS on January 19, 2022.

[8] In February, Mother admitted to the probation violation in the felony neglect case (based on public intoxication), and the criminal court ordered her to serve two years of her previously suspended sentence as a direct commitment to home detention, with her earliest possible release date in fall 2023. In July 2022, Mother gave birth to Child's half-sister. As of August, Mother was compliant with the case plan. Child returned home to Mother on a trial home visit in September. Mother and Child reunified, and the second CHINS case closed on November 2, 2022.

[9] Third CHINS case – The underlying CHINS action began in 2023. While Mother was still on home detention following her probation violation in the felony neglect case, Mother failed a drug screen. When caseworkers visited Mother's home on February 24, Child was at school and Child's younger sister was at home. Mother was jittery, aggravated, and had dilated pupils. She admitted taking Adderall and Xanax without valid prescriptions and using methamphetamine but denied consuming illegal drugs in the children's presence. DCS removed Child from Mother's care on an emergency basis and again placed her with Foster Father.

[10] Mother attended a thirty-day inpatient treatment program for a second time, this time at Tara Treatment Center. Child was adjudicated a CHINS on April 24, 2023. In the CHINS order, the trial court noted Mother's long history of alcohol and illegal substance use, treatment, and relapses. In the May dispositional order, the trial court ordered Mother to, among other things: enroll in programs recommended by the FCM; not use or consume any illegal controlled substances; take only prescription medications for which a valid and current prescription exists; consume no alcohol; obey the law; complete a substance use assessment and follow all treatment recommendations made as a result; submit to random drug screens; and follow all terms of probation currently ordered. By then, Mother had completed inpatient treatment at Tara, so the trial court also ordered Mother to enroll in an outpatient program.

[11] Soon after, Mother relapsed and tested positive for methamphetamine. In June 2023, due to failed drug screens and other violations while on home detention, the State petitioned the criminal court in the felony neglect case to change Mother's placement to incarceration.² In July, Mother was cooperative with probation and DCS, participating in services, attending twelve-step meetings, and visiting with Child. The trial court approved unsupervised visitation but noted it did not “want to return the child to the home until the results of the criminal case are known.” Exhibit Vol. 1 at 226. On August 2, Mother appeared for the probation violation hearing in the felony neglect case, and the criminal court ordered the balance of her time executed in the Indiana Department of Correction (“DOC”). She was incarcerated until October 2023.

[12] With her felony neglect sentence now complete, in November Mother began serving her felony OWI sentence, which had mostly been suspended to probation. After several positive alcohol and drug screens, however, the State petitioned to revoke her probation in that case.³

[13] At a CHINS permanency hearing held in January 2024, the trial court found Mother was noncompliant with her case plan. She was testing positive for illegal substances and had missed supervised visits. The trial court ordered her to complete inpatient treatment through Volunteers of America (“VOA”). Mother reported to VOA with a 0.28% blood alcohol concentration and was transferred to a facility to detox before returning to VOA. In February, the trial court noted Mother was doing well in treatment at VOA and compliant with the case plan. The trial court adopted a plan of reunification with a concurrent plan of adoption.

[14] Mother successfully completed the eighty-four-day VOA inpatient program in April. On her therapist's recommendation, she interviewed for and was accepted into a VOA transitional housing program called Legacy House, which offered a “Mommy and Me” program for mothers living with their children. DCS “was not in agreement with moving forward to [Mother] having [her] children part time and therefore she could not have a spot at Legacy House.” Tr. Vol. 2 at 121. Child remained with Foster Father.

[15] Mother was partially compliant with the case plan after her discharge from VOA. She engaged with services but declined a therapy referral from DCS, preferring to obtain services from her own provider, Major Health Partners (“MHP”). Probation also ordered Mother to complete intensive outpatient treatment through Hickory Treatment Center but Mother was discharged due to attendance issues. On May 2, the State filed a supplemental petition to revoke Mother's probation in the felony OWI case, alleging Mother “provided a breath sample to Decatur County Probation with the result of .155% BrAC” and admitted to consuming alcohol on April 19. Exhibit Vol. 1 at 177. When Mother attended the probation revocation fact-finding hearing on May 14, the criminal court revoked her probation and ordered her to serve the balance of the felony OWI sentence—about 360 days—in the DOC.

[16] DCS petitioned to terminate the parent-child relationship on July 25, 2024. At the time, Mother was incarcerated in the Decatur County Jail. There, she participated in limited services, including weekly virtual visits with Child.

[17] The trial court held a fact-finding hearing on October 21, 2024, and January 14, 2025.⁴ DCS introduced select records from Mother's criminal cases and Child's CHINS cases, but did not call the FCM, Child's Court Appointed Special Advocate (“CASA”), any DCS employees, or any of Mother's or Child's service providers to testify. Instead, DCS’ primary witness was Mother.

[18] Mother testified at length and was forthcoming about her criminal history, DCS involvement, alcohol and substance use disorder, and recovery. Mother stated she first drank alcohol and used cocaine when she was thirteen. Now thirty-six years old, she had abstained from methamphetamine since enrolling in the VOA program in January 2024. But she was still smoking marijuana to cope with anxiety and curb nausea as recently as the day before the hearing. Regarding marijuana use, she testified “I wish I could, I can stop smoking marijuana, I can. Unfortunately, right now I'm going through a very rough time.” Tr. Vol. 2 at 87. Although her doctor did not condone marijuana use, she testified the doctor believed it was safer than prescribing certain anti-anxiety medications due to her substance use history. She testified that reducing her marijuana use is something her doctor wanted her to do, and she wanted to work on. She discussed recovery being a life-long work-in-progress. As to her criminal cases since 2019, Mother had completed serving her sentences on all convictions by November 2024. Regarding Child's placement, Mother testified, “She's in a good home. She is with her brother. I know they care about her. They do take care of her.” Id. at 90.

[19] DCS’ two other witnesses were Foster Father and his wife. As of the January hearing date, Child was seven years old and had been in continuous placement with Foster Father for 686 days. Since Child was first removed in 2020, Child had lived “4 years of the 7 years of her life” with Foster Father, his wife, and Child's older half-brother, who was now eleven years old. Id. at 111. Foster Father and his wife each testified they were willing to adopt Child and had filed an adoption petition. As to visitation with Mother should her rights be terminated, Foster Father testified he had “no problem” with Child visiting Mother, if Mother's “doing well,” meaning sober. Id. at 113. But he observed, “here we are 5 years later and she is not doing well. She hasn't been established enough for that plan to take place.” Id.

[20] Three witnesses testified at Mother's behest. Jessica Bosecker, Mother's therapist at VOA, testified Mother successfully completed the VOA program. She described Mother as “kind, smart, motivated, capable, [and] recovery oriented.” Id. at 122. She recommended Mother engage with intensive outpatient services after discharge from VOA. Jordan Roach, Mother and Child's visit supervisor since spring 2024, including through her most recent incarceration, testified visits were “going really well.” Id. at 126. Roach believed Mother and Child have “a very loving relationship” and a “very strong bond.” Id. at 126, 127. Based on their visits, Roach had “no concerns.” Id. at 129. Mother also introduced a letter from a prior visit supervisor who stated Mother was prepared for visits, Mother and Child had a “strong bond,” and Mother was “one of the most resolute mothers I have ever met.” Exhibit Vol. 2 at 9.

[21] Mother's third witness was Nichole Scott, Child's CASA since February 2024. CASA Scott disagreed with terminating Mother's parental rights. She noted all visit reports were positive, with appropriate parenting and a strong parental bond. As of January 2025, Mother had appropriate housing, was employed, had tested negative for methamphetamine use since January 2024, and was compliant with services. CASA Scott obtained Mother's medical records from MHP. Although Mother recently tested positive for marijuana and prescribed medication, Mother's physician noted “nothing concerning showed up in the drug screen,” which CASA interpreted to mean the doctor was not concerned about Mother's marijuana use. Tr. Vol. 2 at 133–34.

[22] CASA Scott also testified to a “lack of case progression” and DCS’ “lack of attention on ․ reunification,” noting DCS did not respond to her emails and failed to hold CFTMs during Mother's recent incarceration. Id. at 132. When asked whether DCS “made up their mind to adopt [Child] a long time ago,” CASA Scott responded, “It seems like it.” Id. at 135.

[23] CASA Scott's primary concern was “about [Child's] mental health if we terminate parental rights.” Id. at 134. She did not believe it was in Child's best interest “to lose the bond with her mother.” Id. at 132. CASA Scott did not recommend Child be reunified with Mother immediately but believed the CHINS case should remain open and Mother should be given more time because “CASA believes [Mother's] moving in the right direction.” Id. at 137.

[24] On January 30, 2025, the trial court terminated Mother's parental rights, finding, in relevant part:

65. [Child] is now seven years old. She was two years of age the first time she was removed from Mother's care due to neglect. She has grown up in placement most of her young life. [Child] is entitled to stability, closure and permanency at this point. She should not be required to wait indefinitely to see if her mother might, at some indeterminate point in the future, decide to stay clean and attain the ability to provide her with a safe, sober and loving home.

66. Current placement is readily capable of caring for [Child] and would like to adopt her.

67. Adoption of [Child] would unite her with a sibling.

* * *

69. The best interests of the child would be served by terminating the parental rights of Mother and allowing [foster parents] to proceed with the adoption of the child.

Appellant's App. Vol. 2 at 81–82.

Standard of Review

[25] Parents have a constitutionally protected right to establish a home and raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). But “this right is not absolute.” In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019), cert. denied. “When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated.” Id. at 45–46.

[26] To terminate a parent's rights to a child, DCS must allege that there is a satisfactory plan for the care and treatment of the child, and that termination of the parent-child relationship is in the child's best interests. Ind. Code § 31-35-2-4(c)(2), (3) (2024). DCS must also allege and prove the existence of one or more of twelve statutory circumstances warranting termination. See I.C. § 31-35-2-4(c)(1), (d). If the trial court finds the allegations of a termination petition have been proven by clear and convincing evidence, the court “shall” terminate the parent-child relationship and “shall enter findings of fact” supporting that conclusion. I.C. § 31-35-2-8(a), (c); see also I.C. § 31-37-14-2 (burden of proof).

[27] We apply a two-tiered standard of review to a termination decision: first, we determine whether the evidence supports the findings and second, whether the findings support the trial court's judgment. In re R.S., 56 N.E.3d 625, 628 (Ind. 2016). We do not reweigh the evidence but consider only the evidence and reasonable inferences most favorable to the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016). And we do not judge witness credibility for ourselves, instead giving due regard to the trial court's unique opportunity to judge the credibility of witnesses firsthand. Id. We will set aside the trial court's judgment only if it is clearly erroneous. Id.

Clear and convincing evidence supports the trial court's termination decision.

A. Factual Findings

[28] Mother challenges fifteen of the trial court's findings as unsupported by the evidence: Findings 18, 39, 45, 48, 51, 55, 56, 58–64, and 68. A finding of fact is clearly erroneous when there are no facts or inferences drawn therefrom to support it. In re W.H., 254 N.E.3d 549, 554 (Ind. Ct. App. 2025). We address each of these findings and the evidence supporting them.

[29] Finding 18 – The trial court found that during the first CHINS case, Mother “was found to not be engaging in her individual therapy or group counseling as required.” Appellant's App. Vol. 2 at 73–74. A periodic review order from that case undisputably contains this language. See Exhibit Vol. 1 at 64 (noting Mother “did not engage in the recommended individual therapy or group counseling recommended by DCS”). Still, Mother argues that “[w]hen the order is read in its entirety, it is evident that the court did not view Mother's failure, to engage in individual therapy or group counseling, as significant.” Appellant's Br. at 24. To the extent Mother asks us to focus on other parts of the order, this is a request to reweigh the evidence, which we cannot do. V.A., 51 N.E.3d at 1143. The finding is not clearly erroneous.

[30] Finding 39 – The trial court found “Mother continued to struggle with compliance with court orders in her criminal cases.” Appellant's App. Vol. 2 at 76. The remainder of the finding summarizes her probation and home detention violations in the felony neglect case. Mother argues this finding is clearly erroneous because she “does not ‘continue’ to struggle with compliance in her criminal cases” as all her criminal activity occurred before she completed inpatient treatment at VOA. Appellant's Br. at 25. DCS presented evidence Mother violated the terms of her probation and home detention in the felony neglect case multiple times, which eventually led to her home detention being revoked and Mother being incarcerated in the fall of 2023. It was not clearly erroneous to say Mother “continued to struggle with compliance” in that case because she violated her conditional release terms several times.⁵

[31] Finding 45 – The trial court found:

The treatment team at VOA recommended that Mother's follow up care take place at an affiliated “Mommy & Me” house with VOA․ [Mother] did not have custody of [Child]; therefore, she did not qualify for placement in the Mommy & Me program. She had also never requested through the CHINS case that the placement of [Child] be modified to her, so that she could participate in this program.

Appellant's App. Vol. 2 at 78. Mother argues this finding is clearly erroneous because “[t]here is no evidence that Mother did not request a modification of placement through the CHINS case.” Appellant's Br. at 28. Mother points to her testimony that she believed she “brought up [the Mommy & Me program] in front of everybody” during a CHINS permanency hearing in February 2024. Tr. Vol. 2 at 104. But the trial court was not required to credit Mother's testimony, and the court's order following the permanency hearing makes no mention of the program. Mother does not allege she or her attorney filed a motion for modification of the dispositional decree and Child's placement. See I.C. § 31-34-23-1(2) (2008) (providing the juvenile court may modify any dispositional decree upon the motion of the child's parent). Mother has not shown the trial court's finding was clearly erroneous.

[32] Finding 48 – Finding 48 states: “Mother had to appear at the July 29, 2024, CHINS Permanency Hearing by telephone because she was again back in the custody of the Decatur County Jail.” Appellant's App. Vol. 2 at 78. Mother argues the “language ‘again back in custody’ implies a recent violation of probation, but there was no recent violation.” Appellant's Br. at 28. Mother was incarcerated from approximately August to October 2023 after violating the terms of home detention in the felony neglect case. She was then re-incarcerated in 2024 due to a probation violation in the felony OWI case, so it was not clearly erroneous to say she was “again” in custody.

[33] Finding 51 – Here, the trial court found:

51. The CASA makes note that she does not find a specific order for [Mother] to attend an intensive outpatient program (IOP) ․ after Mother's release from jail in November 2024. However, the CHINS Court did find in its July 29, 2024, Permanency Order that after inpatient at VOA, Mother's probation supervisor had ordered IOP at Hickory Treatment Center. Again, Mother had been discharged from that IOP program due to poor attendance. The CHINS court also had ordered Mother to follow all terms of her probation in the Dispositional Order dated May 25, 2023, along with ordering Mother to enroll in and participate in any program recommended by the Family Case Manager.

Appellant's App. Vol. 2 at 79. Mother concedes this finding is “technically accurate” but contends it is “misleading” because it implies Mother was noncompliant with services ordered through the CHINS case. Appellant's Br. at 30. The record shows that after Mother was successfully discharged from VOA, she did not attend Hickory Treatment Center and declined a therapy referral from DCS because she preferred to engage with a provider she selected, rather than those chosen by probation or DCS. Soon after, the criminal court revoked Mother's probation, leading to her incarceration. This finding is not clearly erroneous.

[34] Findings 55, 56, and 58–63 – Regarding Mother's drug use, the trial court made several findings which Mother challenges as unsupported by the record:

55. The use of illegal drugs is inconsistent with providing a child with necessary care and supervision. Mother ․ consistently placed [Child] in actual danger by her violation of the law and use of illegal drugs. One such example of this would be the time Mother, while under the influence, and while [Child] was in her care, reported that [Child] was drowning in a creek. Another example would be taking the two year-old child to a drug house that was raided by police in order to use methamphetamine while on a day pass from residential treatment.

56. Mother ․ has never shown the forethought or insight necessary in order to seek treatment for her drug addiction unless under arrest, as a term of criminal probation or when ordered in a CHINS case. Once the orders of the court end, she has consistently returned to the use of illegal drugs and has failed to provide necessary supervision and care for [Child].

* * *

58. Mother's pattern of neglecting [Child] was not affected by a conviction of criminal neglect of the child or by incarceration.

59. It is necessary for all children to have necessary supervision and care, including a home with a sober caregiver who will keep the child free from the criminal element and associated dangers.

60. Only two months since being released from her most recent incarceration, Mother is already slipping back into her habit of using illegal drugs. Mother rationalizes her ongoing drug use as “it's only marijuana”, this while still in ongoing treatment for her longtime substance abuse and addiction. While “only marijuana”, marijuana remains an illegal substance. It is a mind altering substance. Her continued use of marijuana is contrary to the terms of the various courts’ orders that [Mother] abstain from the use of any illegal substances. More importantly, Mother is not an occasional recreational user. She is actively using the controlled substance, notwithstanding her personal long-term history of addiction and failed drug treatment. She testified that she is, essentially, using illicit marijuana to self-medicate. [Mother] is not clean and sober at this time. Her continued drug use, even if “only marijuana”, jeopardizes the prospects of her long-term recovery. And, thus, it presents an ongoing threat to [Child's] safety.

61. Mother's lack of [insight] into the extent of her addiction and her addiction's [effect] on [Child] has obviously not improved. By way of context, in the second ․ CHINS case Mother reported in a [CFTM] during the pendency of the case she drank a fifth of alcohol in one setting and that immediately prior to the CFTM she had consumed a Margarita. She then stated that she did not believe her drinking posed an issue for the safety of the child.

62. The court finds that a parent's past behavior is the best predictor of future behavior. Mother's criminal history, including a conviction for criminal neglect of [Child], coupled with a total of three adjudications of [Child] being a CHINS is a pattern of conduct showing no overall progress.

63. Mother's continued substance abuse and failure to complete court-ordered services over the last two and a half years demonstrates her unwillingness and inability to meet her parental responsibilities.

Appellant's App. Vol. 2 at 79–81 (record citation omitted).

[35] As to these findings, Mother generally does not argue with the accuracy of the underlying facts so much as disputes the trial court's characterization of or inferences drawn from them. For example, she disagrees with the trial court's description of her illicit drug use and neglect as a “pattern.” See Appellant's Br. at 32 (“[T]here is no evidence that Mother ‘consistently’ placed [Child] in danger. [Child] was in danger, on January 26, 2020, when Mother visited the house [that was raided].”); id. at 34 (“Mother has not ‘consistently returned to the use of illegal drugs.’ Except for THC, mother has not used illegal drugs, since before she entered the VOA program on January 17, 2024.”); id. at 35 (“As noted above, there is no evidence of a ‘pattern of neglect.’ The record shows there was one, and only one, instance when Mother neglected [Child].”); id. at 36 (“Mother has only exposed [Child] to [‘the criminal element’] on one occasion.”). Mother also argues the trial court incorrectly characterizes Mother as having made no progress addressing her illegal drug use. See id. at 36 (Mother arguing the record “does not support the court's finding that [her] insight into her addictions and its effect has not improved” because “she has refrained from using illegal drugs, except THC, for more than a year”).

[36] The record supports the trial court's use of the word “pattern” with respect to neglect. After DCS removed Child in the first CHINS case, Mother pleaded guilty to felony neglect of a dependent. Child has since been the subject of two more CHINS cases. This certainly demonstrates a pattern in which Child is neglected, returned to Mother's care, and neglected again. The most recent instance of neglect occurred in 2023 when DCS removed Child due to Mother's methamphetamine use. Since then, Child has been in the care of her foster family. The trial court did not clearly err in focusing on Mother's actions when Child was in Mother's care and supervision as establishing a pattern of neglect.

[37] As to Mother's progress in addressing her alcohol and substance use disorder, she points to her testimony acknowledging she has a problem, she is learning to recognize thoughts and actions that put her at risk of relapse, and she understands recovery is a life-long process. Mother's testimony shows an awareness and understanding of her alcohol and substance use disorder, which is a necessary component to addressing it, and we acknowledge Mother's efforts in this regard. At the same time, despite completing three inpatient treatment stays in the last five years—including two during the third CHINS case—she is not sober. She testified to using marijuana the day before the termination hearing and believed the circumstances justified her continued use.⁶ She was equivocal about her ability to stop using illegal drugs. See Tr. Vol. 2 at 87 (Mother stating, “I wish I could, I can stop smoking marijuana, I can. Unfortunately, right now I'm going through a very rough time.”). She has not been able to reunify with Child because she continues to use illegal drugs. Mother's own testimony therefore supports the trial court's finding Mother still lacked insight into the effects of her substance use on Child. And when we consider the larger picture, especially in the context of meeting the dispositional decree objectives to abstain from drug and alcohol use, it was not clearly erroneous for the trial court to say Mother failed to make progress overall.

[38] Finding 64 – Here, the trial court found: “Returning the minor child to Mother at this point would threaten both the emotional and physical wellbeing of the minor child, along with her physical development.” Appellant's App. Vol. 2 at 81. Mother argues there was no evidence she posed any threat to Child's emotional or physical well-being. She points to CASA Scott's testimony that termination at this point would harm Child's emotional well-being, noting DCS presented no contrary evidence.

[39] True, DCS presented no direct testimony from a DCS case worker or a service provider on this point. But it is inaccurate to say DCS presented no evidence from which the trial court could infer that returning Child to Mother's care would jeopardize Child's well-being. During the pendency of the third CHINS, Mother was incarcerated twice. She attended inpatient treatment twice, and relapsed both times. At the time of termination, Mother was not sober. Although CASA Scott disagreed with termination, she did not recommend reunification at that time—effectively a concession Mother had not yet met the dispositional decree objectives to warrant terminating wardship and the trial court's jurisdiction. Child had been living with Foster Father, his wife, and a sibling for 686 days. Since Child was first removed in 2020, Child had lived most of her life with her foster family. From this evidence, the trial court could have found removing Child from her foster home “at this point” would threaten Child's well-being. Id. This finding was not clearly erroneous.

[40] Finding 68 – Finally, Mother challenges the following finding:

Foster parenting is difficult and often heartrending. There are not nearly enough good foster homes available to serve the needs of children like [Child]. Moving children in and out of foster placement further emotionally impacts not only the child, but the entire foster family as well. At some point it becomes unrealistic to expect the same foster family to take a child in a fourth time or more. At some point adoption, as a permanency option by the current foster parents, may be endangered or lost.

Appellant's App. Vol. 2 at 82. Mother argues there is no evidence in the record about a foster home shortage, and the finding is irrelevant to the statutory elements DCS must prove in a termination case. The record shows Child was placed with Foster Father twice in 2020, once in 2021, and once in 2023. According to DCS’ preliminary inquiry report when Child was placed with Foster Father in 2023, he and his wife “stated concerns that they are back here in this position with [Child. They] reported [Child] was in their care just 6 months ago due to DCS involvement ․ and have concerns for the system as [Child] keeps being reunified with [Mother] and [Mother] not changing her choices.” Exhibit Vol. 1 at 194. From this evidence, the trial court could reasonably infer that Child and her foster family were emotionally impacted by Child's repeated placement in and removal from foster care, which is the primary focus of the finding.

[41] We agree, however, there was no evidence about a foster home shortage in the record. To the extent the finding goes beyond the emotional impact on Child and foster family, the finding is unsupported by the record. But erroneous findings do not warrant reversal if they amount to mere surplusage and add nothing to the trial court's decision. Bell v. Clark, 653 N.E.2d 483, 489 (Ind. Ct. App. 1995), adopted on appeal, 670 N.E.2d 1290 (Ind. 1996); see also In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (holding an erroneous finding was “merely harmless surplusage” when the unchallenged findings “provide[d] ample support for the trial court's ultimate conclusion”). Setting aside the harmless surplusage in Finding 68, the evidence supports the trial court's finding.

[42] In sum, the record supports all but part of Finding 68.

B. Two Separate CHINS Adjudications

[43] As discussed above, DCS must allege and prove the existence of “one (1) or more” of twelve statutory circumstances warranting termination. See I.C. § 31-35-2-4(c)(1), (d). DCS in this case alleged six of the twelve statutory circumstances in subsection (d), including that Child has, on two separate occasions, been adjudicated a CHINS. I.C. § 31-35-2-4(d)(5).⁷ The parties do not dispute Child was adjudicated a CHINS three times, and therefore DCS carried its burden to prove one of the subsection (d) requirements. Accordingly, we need not review whether DCS proved any of the other subsection (d) circumstances. See In re J.W., 259 N.E.3d 1039, 1045 (Ind. Ct. App. 2025) (“DCS was only required to prove one of the circumstances listed in subsection (d) in support of its petition to terminate [a parent's] parental rights[.]”), trans. denied.

C. Best Interests

[44] To terminate a parent's rights to a child, DCS must allege termination of the parent-child relationship is in the child's best interests. I.C. § 31-35-2-4(c)(3) (2024). When deciding whether termination is in the child's best interests, trial courts “must look at the totality of the evidence and, in doing so, subordinate the parents’ interests to those of the children.” Ma.H., 134 N.E.3d at 49. A child's need for permanency is a central concern. Id. “Indeed, ‘children cannot wait indefinitely for their parents to work toward preservation or reunification.’ ” Id. (quoting In re E.M., 4 N.E.3d 636, 648 (Ind. 2014)). And trial courts “need not wait until the child is irreversibly harmed such that the child's physical, mental and social development is permanently impaired before terminating the parent-child relationship.” E.M., 4 N.E.3d at 648 (quoting K.T.K., 989 N.E.2d at 1235).

[45] Mother argues termination is not in Child's best interests because CASA Scott was “concerned about [Child's] mental health if we terminate parental rights” and thought it “would be detrimental to [Child] to lose her Mom.” Tr. Vol. 2 at 134, 136. Mother contends the trial court should have given more deference to CASA Scott's testimony as “Scott's only interest in the case is to represent and protect [Child's] best interests.” Appellant's Br. at 43 (citing I.C. § 31-32-3-6 (1997) (providing a “court appointed special advocate shall represent and protect the best interests of the child”)). Mother notes her visit reports have been positive, she is receiving some healthcare or services through MHP, and she is employed and has suitable housing. She contends there is no evidence her drug use poses harm to Child's well-being. In short, she argues her “past history of drug use and criminal activity, and her current use of marijuana, are not sufficient to show that the last resort measure, of terminating her parental rights, is warranted.” Appellant's Reply Br. at 5.

[46] But Mother's history of drug use and criminal activity have harmed Child. Child has been removed from Mother's care four times in five years and spent more of her lifetime outside Mother's care than in it. During the third CHINS action, Mother was incarcerated twice—once in 2023 and again in 2024—because she could not follow the terms of probation or home detention. She relapsed immediately after leaving impatient treatment at Tara in 2023. She used alcohol and marijuana after completing treatment at VOA in 2024. As the trial court found, her actions establish a pattern of relapse as soon as court-ordered services are completed. A trial court is free to “weigh a parent's prior history more heavily than efforts made only shortly before termination.” E.M., 4 N.E.3d at 643.

[47] We understand, as Mother testified, that “[r]elapse comes with recovery.” Tr. Vol. 2 at 93. But Mother's choices and actions over the years have created an extended period of instability for Child. Children “have a paramount need for permanency” which is “a central consideration in determining the child's best interests.” E.M., 4 N.E.3d at 647–48. Child simply should not have to wait indefinitely for Mother to create the safe, stable, drug-free home Child deserves. See id. at 648 (observing “children cannot wait indefinitely for their parents to work toward preservation or reunification”). In that regard, Mother testified Child is in a good home with people who care about her. And there, Child is with her older brother. The trial court's finding that termination is in Child's best interest is not clearly erroneous.

[48] In sum, the evidence supports the findings, and the findings support the trial court's judgment. Clear and convincing evidence supports the trial court's termination decision.

Mother waived her due process challenge.

[49] Mother argues DCS’ failure to fulfill its statutory obligation to make reasonable efforts to preserve the parent-child relationship presents a “separate and independent ground requiring reversal.” Appellant's Br. at 54 (citing I.C. § 31-34-21-5.5(b) (2012) (providing DCS “shall make reasonable efforts to preserve and reunify families” in CHINS proceedings)).

[50] The CHINS provision requiring reasonable efforts to preserve and reunify families “is not a requisite element of our parental rights termination statute[.]” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009). Still, “[w]hen the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). To protect a parent's due process rights in the context of termination proceedings, “DCS must have made reasonable efforts to preserve and/or reunify the family unit in the CHINS case[.]” In re T.W., 135 N.E.3d 607, 615 (Ind. Ct. App. 2019), trans. denied. But “[w]hat constitutes ‘reasonable efforts’ will vary by case, and ․ it does not necessarily always mean that services must be provided to the parents.” Id. Indeed, the “failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law.” H.L., 915 N.E.2d at 148 n.3; see also In re I.A., 934 N.E.2d 1127, 1136 (Ind. 2010) (“It is of course true that the provision of family services is not a requisite element of our parental rights termination statute.”) (quotation omitted).

[51] The record shows DCS referred Mother to services including inpatient treatment, homebased case work, individual therapy, random drug screens, and supervised visitation. But Mother notes (1) her visits remained fully supervised throughout the third CHINS case, (2) DCS did not respond to CASA Scott's request that visits change from fully supervised to “pop-in” supervision, and (3) DCS disagreed with changing Child's placement so Mother could participate in the VOA-affiliated Legacy House “Mommy & Me” program. Mother contends the lack of these specific services or referrals shows DCS failed to make reasonable efforts to reunify her with Child. But Mother does not equate the alleged lack of services in the CHINS case with a due process violation. And Mother made no due process argument in the trial court. It is well established “a party on appeal may waive a constitutional claim.” McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). Mother cannot attack the termination order directly on the basis DCS failed to provide certain services in the CHINS case, and having made no due process argument, Mother's independent argument about reasonable efforts is waived.

Conclusion

[52] Clear and convincing evidence supports the termination decision. Mother waived any independent due process claim regarding DCS’ reasonable efforts to reunify Mother and Child.

[53] Affirmed.

FOOTNOTES

1.   Mother and Foster Father were previously in a relationship and had Child's older half-brother together. Foster Father has custody of their son. In 2020, Foster Father was also living with a girlfriend, now his wife.

2.   In July, Mother was arrested for misdemeanor driving while suspended. She did not serve any time on this charge, although the State later included it in its petition to revoke Mother's probation in the felony OWI case.

3.   The original petition to revoke probation does not appear in the record of this case, although DCS provided a supplemental petition filed in May 2024. See id. at 176.

4.   Mother was incarcerated during the first hearing day but was released shortly after in November 2024.

5.   To the extent Mother argues the trial court erred by implying Mother violated her probation more recently, the record shows Mother violated the terms of her probation in the felony OWI case in part by consuming alcohol on April 19, 2024—after her discharge from VOA.

6.   Mother argues the only evidence in the record about her marijuana use is that it “does not pose any risk to Mother or [Child].” Appellant's Br. at 41. Mother relies on her own testimony that her doctor would not prescribe certain anti-anxiety medications such as Xanax due to the long-term effects and her history of abusing benzodiazepines, and that he would rather she smoke marijuana. Even if the trial court credited her testimony in that regard, which it was not required to do, Mother's testimony was more nuanced. The trial court questioned Mother directly on whether her doctor approved of her marijuana use, and she acknowledged, “He's not ․ okay with it․ But right now he's not harping on me because he'd rather me do that than any ․ anxiety medicines that I've been on in the past[.]” Tr. Vol. 2 at 106. When further pressed, she testified the doctor did not approve of her smoking marijuana, in part because it is illegal, and he preferred she engage in therapy. She also noted he was regularly drug testing her and meeting with her every two weeks, which she assumed was because “maybe he thinks that since I am smoking ․ I could make the wrong decision and do ․ another drug representing benzos[.]” Id. at 107–08. When read as a whole, we do not believe Mother's testimony indicated smoking marijuana posed no risks to her.

7.   DCS also alleged the circumstances described in subsections (d)(2), d(3), d(4), d(6), and d(7) were present. See Appellant's App. Vol. 2 at 19.

Kenworthy, Judge.

Judges Foley and Scheele concur. Foley, J., and Scheele, J., concur.