D.L. (Mother), Appellant-Respondent, v. Kids’ Voice of Indiana, Appellee-Guardian Ad Litem. (2025)

MEMORANDUM DECISION

Case Summary

[1] D.L. (Mother) appeals the involuntary termination of her parental rights as to her two minor children, G.L.¹ and J.R.² (collectively, the Children), claiming that the trial court's termination order was clearly erroneous. Mother argues that her due process rights were violated during the pendency of the prior CHINS proceedings and that the Indiana Department of Child Services (DCS) failed to prove that the conditions resulting in the Children's continued placement outside Mother's home would not likely be remedied.

[2] We affirm.³

Facts and Procedural History

[3] DCS initially became involved with Mother in 2012, shortly after one of her other children, T.L., was born. At some point during that year, T.L. was diagnosed with failure to thrive and severe malnutrition. A second DCS involvement occurred in 2015 due to domestic violence between Mother and another adult. The trial court ultimately placed T.L. with her father and awarded him full custody.

[4] Mother had another daughter, A.L., who died on August 29, 2022, when she was two months old. On that day, after receiving notice of A.L.’s death, DCS Family Case Manager (FCM) Kristin Bryant and law enforcement officers interviewed Mother. Mother stated that she had put A.L. down on a couch with a bottle the prior evening, covered her with a blanket, and went to another part of the residence to do housework. Mother stated that when she returned a few minutes later, A.L. was “blue” and was not breathing so she performed some “infant chest compressions” and called 911. Transcript at 49; Appellant's Appendix Vol. II at 205, 207.

[5] When emergency personnel arrived at Mother's Marion County residence and pronounced A.L. deceased, Mother denied any responsibility for the death. Mother stated to police that she had not used drugs or alcohol at the time of A.L.’s death, and she submitted to an oral drug screen. That test was positive for methamphetamine.

[6] Shortly thereafter, FCM Bryant made numerous unsuccessful attempts to contact Mother about the drug test results. It was not until October 27, 2022, that FCM Bryant was able to meet with Mother. At that time, Mother admitted that she regularly smokes marijuana and that her use of methamphetamine a few days prior to A.L.’s death was “a one-time thing.” Appellant's Appendix Vol. at 206.

[7] Mother made another statement to detectives on January 18, 2023, about A.L.’s death and admitted that she was “high” when A.L. died. Id.; Transcript at 48. Although Mother had initially claimed that she had not done anything to A.L., she told the detective during the January 18 interview that she had “aggressively rubbed lotion” on A.L. to make her stop crying, and that she “forcefully shoved a bottle in A.L.’s mouth.” Transcript at 48; Appellant's Appendix Vol. II at 207. Mother stated that she hit A.L. and placed her on her side to face the back of the couch so the pillows would “muffle [A.L.’s] crying because [Mother] just wanted to sleep.” Transcript at 49; Appellant's Appendix Vol. II at 207. Mother told the detective that A.L.’s death was an accident and that she had not “intentionally smothered” A.L. Transcript at 49.

[8] Following the interview, Mother was arrested and charged with one count of neglect of a dependent resulting in death, a Level 1 felony, and a no-contact order was issued prohibiting Mother from having any interaction with the Children. At that point, FCM Bryant recommended the Children's removal from Mother's care because of abuse and neglect. DCS filed Child in Need of Services (CHINS) petitions as to the Children on January 20, 2023, alleging that the Children's physical and mental conditions were endangered because of Mother's inability, refusal, or neglect to supply them with necessaries and that their needs were not likely to be provided without the court's coercive intervention.

[9] Following an initial hearing on the CHINS petitions, the trial court ordered the Children's removal from Mother's care. G.L. was placed with a relative and still resides there, and J.R. remains with the foster family where he was originally placed. The Children were adjudicated CHINS on May 1, 2023, and no DCS services were ordered for Mother because she remained incarcerated. At the time, the permanency plan was for reunification.

[10] On February 12, 2024, a permanency hearing was held in the CHINS cases, while Mother remained incarcerated in the county jail. The trial court modified the permanency plan for the Children to adoption, as it determined that the Children's needs were met in their pre-adoptive homes, and they were bonded with their caregivers. The trial court further found that Mother could not meet the Children's needs for permanency.

[11] On April 16, 2024, DCS filed a petition to terminate Mother's parental rights as to the Children. DCS alleged that there is a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside Mother's home will not be remedied, and that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the Children.

[12] Mother was acquitted of the criminal charge and was released from incarceration on April 17, 2024. Thereafter, on May 6, the trial court ordered Mother to participate in home-based case management and to submit to a psychological evaluation, random drug screens, and parenting assessments. Mother was not awarded parenting time with the Children because the trial court wanted to ensure that the Children were mentally and emotionally ready for visits.

[13] At the termination hearing that commenced on October 21, 2024, the evidence established—and the trial court found—that Mother did not have steady housing from April through October 2024, because she “moved from one person's place to another.” Appellant's Appendix Vol. II at 209. And since April 2024, Mother has had multiple jobs, each for a short period of time. At the time of the termination hearing, Mother had worked for two weeks as a home health aide that required her to work seven twelve-hour days in succession, followed by “seven days off.” Id.

[14] On July 24, 2024, Mother tested positive for cocaine, and she had not participated in the court-ordered substance abuse assessment. Mother claimed that the drug test was in error and denied ever using cocaine.

[15] Carmen Batts-Porter of Family & Community Partners was assigned to assist Mother in locating suitable and affordable housing and finding steady employment and transportation. Batts-Porter also was to help Mother develop and improve her parenting skills. Although Batts-Porter provided Mother with several low-income housing options, Mother rejected those ideas because she believed that such residences were not in safe neighborhoods and she wanted to live on the north side of Indianapolis. When Batts-Porter ceased working with Mother in early September, Mother had not located housing for her and the Children, and she had not found steady employment.

[16] The evidence further established that Lakisha Williams, who is employed by Damar, was assigned to work with Mother in September 2024 to help with homebased services. Mother, however, did not respond to text messages from Williams, and the two did not meet until the day of the termination hearing. Mother also failed to supply Williams with requested pay stubs, bank statements, and utility bills that would have helped Williams create a budget for Mother.

[17] Norkah Carter, a home-based therapist who worked with Mother, determined that Mother required intense therapy to address “the effects of multiple complex traumas” in her life. Transcript at 90. Carter observed that Mother was unable to focus on her needs, and she recommended that the Children not be placed in Mother's care. Mother rejected Carter's therapy recommendations and did not believe that she required any substance abuse treatment.

[18] One of Mother's therapists, Megan Haltom, recommended that Mother participate in an intensive outpatient drug program. Mother attended only three of twenty-four sessions, and she tested positive for alcohol on September 27. As Mother claimed that the sample had been tampered with when she tested positive for cocaine in July, Haltom believed that Mother's denial of cocaine use will hinder her sobriety. Mother also told Haltom that she started to drink heavily after A.L.’s death and admitted to occasionally driving the Children to daycare and other places while intoxicated.

[19] Dr. Daniel Westmoreland conducted a psychological evaluation of Mother and concluded that she suffers from depression and manic symptoms. Dr. Westmoreland recommended that Mother undergo treatment to address those issues and emphasized that Mother should abstain from using illegal substances.

[20] Evidence was also presented at the termination hearing that the Children were undergoing therapy, and it was recommended that Mother not have parenting time with the Children. The Children were experiencing trauma about seeing Mother again, and their therapist believed that it would be detrimental for them to begin parenting time with Mother.

[21] The Guardian ad litem (GAL) testified that she started working with the Children in January 2023, and she believed that the Children would regress should parenting time begin. The GAL opined that G.L. was currently in a “really great space” and that “reintroducing her” her to Mother would be detrimental. Id. at 213. The GAL also believed that J.R. would probably not remember Mother due to his young age, and that visiting with her would “be like meeting a new person.” Id. The GAL testified that the Children were stable in their present homes and she was concerned for their mental wellbeing if they were moved. The GAL believed that termination of Mother's parental rights was in the Children's best interests and that adoption was a satisfactory plan for them.

[22] Several FCMs visited the Children in their respective foster placements and observed that they were growing and thriving. All agreed that the Children were happy, safe, and comfortable in their foster homes and that their needs were being met. The FCMs believed that adoption was a satisfactory plan for the Children and in their best interests.

[23] Following the hearing, the trial court terminated Mother's parental rights as to the Children and entered extensive findings of fact and conclusions in relevant part as follows:

114. The conditions that led to the Children's removal or placement and retention outside the home of Mother's [was her] abuse of substances that interfered with her ability to parent her Children and to provide them with a safe home environment; Mother's refusal to adequately address her substance abuse disorder; Mother's denial and refusal to acknowledge accountability for the death of her infant daughter while she was under the influence of methamphetamine; Mother's inability to demonstrate whether she has attained and can maintain sobriety; Mother's lack of stability including housing and source of income to support herself and the Children; and Mother's lack of progress with her court ordered services to address the safety concerns.

115. These conditions have not been remedied.

116. It is highly probable that these conditions will not be remedied, even if Mother ․ [was] given additional time to remedy the conditions.

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118. Mother did not consistently engage nor complete all the services that could have helped her adequately address her substance use disorder, nor has she achieved stable and suitable housing and income to support herself and the Children. Mother has not shown sobriety for any significant period of time.

119. No one on the child and family team has recommended the children be placed back with Mother. Mother still refuses to acknowledge the role she played in the death of her daughter and how her substance use contributed to that death.

120. There is a reasonable probability that future neglect or deprivation will occur because of ․ Mother's failure to remedy the conditions.

121. The Court finds that DCS has shown 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 the home of ․ Mother will not be remedied.

122. There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the children.

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125. The children's emotional and physical development are threatened by a continuing parent-child relationship with Mother ․ and by Mother's ․ custody. Mother has not successfully completed services to demonstrate that she has addressed the safety concerns of substance abuse, lack of housing, [and] mental health treatment needs.

126. Mother has failed to acknowledge or accept the role she played in the death of [A.L.] while she was admittedly under the influence of methamphetamine. Mother struck and abused a vulnerable two-month-old infant before placing the two-month-old face first into a couch cushion to muffle the infant's crying while mother slept in another room. Without an acknowledgement of the dangers of those actions, the safety and well-being of the children will remain threatened by continuing the parent child relationship.

127. Neither of the Children have a bond with parents and [G.L.] has shown signs of trauma related to her mother. Removing the children from their current placements would harm their emotional and mental wellbeing. [The Children should not] have to wait any longer for permanency and stability.

128. The Court finds that DCS has shown by clear and convincing evidence that there is a reasonable probability that the continuation of the parent-child relationship between Mother ․ and the Children poses a threat to the well-being of the Children.

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134. The Court finds that DCS has shown by clear and convincing evidence that adoption of the Children by their pre-adoptive placements is a satisfactory plan for the care and treatment of the Children. IC 31-35-2-4(c)(1).

135. Permanency is in the Children's best interests and DCS has an appropriate permanency plan of adoption with the Children's current pre-adoptive placements.

136. Mother has not demonstrated the ability to provide [the Children] with a permanent, safe and stable, sober home environment and to provide for the[ir] long-term and short term needs.

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138. Both the FCM and the GAL believe that the termination of parent-child relationship between Mother and the Children and ․ adoption of the Children by their placement is in the Children's best interests.

139. The Court finds that DCS has shown by clear and convincing evidence that termination of the parent-child relationship between Mother and the Children ․ is in the best interests of [the Children]. IC 31-35-2-4(c)(3).

Appellant's Appendix Vol. II at 203-19.

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

Discussion and Decision

Standard of Review

[25] In deference to the trial court's unique position to assess the evidence, we will set aside a 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. Where, as here, a trial court enters findings of fact and conclusions, our review 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 accept any unchallenged findings as true.⁴ See Matter of To.R., 177 N.E.3d 478, 485 (Ind. Ct. App. 2021), trans. denied.

Discussion & Decision

[26] 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). A parent's interest in the care, custody, and control of his or her children is “perhaps the oldest of the fundamental liberty interests.” Id. However, parental rights “are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights.” Id. If parents are “unable or unwilling to meet their parental responsibilities,” termination of parental rights is appropriate. Id. We recognize that the termination of a parent-child relationship is “an extreme measure and should only be utilized as a last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed.” K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015).

[27] Before an involuntary termination of parental rights can occur in Indiana, DCS is required to allege and prove, among other things: the existence of one (1) or more of the following circumstances:

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(3) That there is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.

(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child.

Ind. Code § 31-35-2-4(d). In addition, DCS must allege and prove:

(2) that there is a satisfactory plan for care and treatment of the child; and

(3) that termination of the parent-child relationship is in the child's best interests.

I.C. § 31-35-2-4(c). DCS's “burden of proof in termination of parental rights cases is one of ‘clear and convincing evidence.’ ” R.Y. v. Ind. Dep't of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).

I. Due Process and DCS Services at the CHINS Level

[28] Mother claims that her due process rights were violated because DCS did not offer any services during the CHINS proceedings when she was incarcerated. As no services were offered, Mother maintains that DCS violated her rights because it “failed to make reasonable efforts to preserve and reunify the family unit.” Appellant's Brief at 23.

[29] The State argues that Mother has waived this issue on appeal because she did not challenge the final CHINS adjudication or the subsequent dispositional orders. To be sure, because she failed to challenge that adjudication or the subsequent orders that related to the CHINS matter, she is precluded from raising them now. See, e.g., In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 877-78 (Ind. Ct. App. 2004) (holding that the parent was precluded from challenging CHINS orders for the first time in his appeal of the termination of parental rights order).

[30] Waiver notwithstanding, the evidence established that during the pendency of the CHINS proceedings, Mother was incarcerated and unavailable to provide for the Children. Moreover, Mother was subject to a no-contact order, and the CHINS court found that her prior behaviors and choices posed a danger to the Children. And because of Mother's incarceration, DCS was unable to fully evaluate her to determine what services were necessary. Mother also fails to point to any evidence suggesting that DCS services were even available at the local jail.

[31] Given these circumstances, Mother cannot successfully complain that her due process rights were violated during the pendency of the CHINS proceedings. See, e.g., In re H.L., 915 N.E.2d 145, 148 (Ind. Ct. App. 2009) (DCS's failure to provide visitation or parenting classes to father during his incarceration did not violate father's due process rights because the lack of services was due to his incarceration and the county jails did not provide reunification services).

II. Conditions that Resulted in Removal/Continued Placement

[32] Mother challenges the trial court's conclusion that there is a reasonable probability that the reasons for the Children's removal or continued placement outside the home will not be remedied. Specifically, Mother contends that the termination of her parental rights was erroneous because some of her drug tests were negative and “her employment and housing were adequate for the Children.” Appellant's Brief at 21.

[33] In determining whether there is a reasonable probability that the conditions that led to a child's removal will not be remedied, we engage in a two-step analysis. See K.T.K., 989 N.E.2d at 1231. First, we examine the conditions that led to the child's placement and retention in foster care, and second, whether there is a reasonable probability that those conditions will not be remedied. Id. In the second step, the trial court must judge a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions and balancing a parent's recent improvements against “habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation.” E.M., 4 N.E.3d at 643.

[34] In judging fitness, the trial court may properly consider a parent's lack of adequate housing and employment, failure to provide support, and prior criminal history. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). The trial court may also consider a parent's response to services offered by DCS, and the reasons for a child's continued placement outside the home. Id. A pattern of unwillingness to deal with parenting problems and to cooperate with those providing social services, in conjunction with unchanged conditions, supports a finding that there exists no reasonable probability that the conditions will change. Id. To be sure, a parent's past behavior is the best predictor of future behavior. In re E.M., 4 N.E.3d at 644-45.

[35] In this case, the conditions that led to the Children's initial removal were Mother's drug use, poor parenting decisions including caring for the Children while impaired, and her unavailability to the Children because of her arrest and incarceration. Also, by the time of the amended dispositional hearing and her release from incarceration, other reasons supported the trial court's reason for the Children to remain out of Mother's care, including her lack of sobriety, her refusal to obtain affordable housing, and her absence of financial stability.

[36] It is well established that “ ‘exposure of [children] to an environment of illegal drug use poses an actual and appreciable danger to [them].’ ” In re J.L., 919 N.E.2d 561, 563 (Ind. Ct. App. 2009) (quoting White v. State, 547 N.E.2d 831, 836 (Ind. 1989)). When the parent responsible for the child's care and custody is under the influence of drugs in the child's presence, the parent “essentially abandon[s] [the child] without any responsible supervision.” Id.

[37] The evidence at the termination hearing showed that DCS made all relevant referrals for assessments and services to help Mother immediately after her release from incarceration. Mother, however, did not avail herself to any of the offered programs or drug counseling options.

[38] As discussed above, Mother tested positive for methamphetamine at the time of A.L.’s death. Although Mother initially denied any responsibility for A.L.’s death, she later admitted that she was still high on methamphetamine the night that A.L. died and she stated that she frequently smokes marijuana. Mother also told FCM Bryant that she abused alcohol after A.L.’s death and that she would occasionally drive the Children to various places while she was intoxicated. Notwithstanding her alcohol and drug issues—including her cocaine use in July, 2024—Mother did not complete her substance abuse assessment until September, 2024. And she did not attend her first full substance abuse session until October, only weeks before the termination hearing.

[39] Mother also tested positive for alcohol use in late September, after she knew that drinking alcohol was not permitted under either the dispositional decree or the substance abuse treatment program. Mother frequently missed drug screens, and her continued use of drugs and alcohol demonstrated her “deep-seated disregard of the children's needs and any attempt to remedy the ․ conditions in the home.” See, e.g., Lang v. Starke County Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (a parent's pattern of unwillingness or lack of commitment to participate in DCS services supports a finding there exists no reasonable probability that the conditions will change), trans. denied.

[40] The record also shows that Mother lacked stable housing, employment, or financial means to care for the Children following her release from incarceration. She refused low-income housing options because she desired to live on the north side of Indianapolis. Mother was transient for nearly six months in mid-2024 until she moved into a hotel a few weeks prior to the termination hearing. The evidence showed that if Mother decided to remain at that location, she would pay over $1600 in monthly rent. Mother had only held her current job as a health aid for two weeks, and she did not cooperate with her homebased case manager to develop a budget. Under the circumstances, the case manager did not believe that Mother could continue living at the hotel. Moreover, Mother's employer required her to work twelve hours per day, seven days a week, before having any time off to care for the Children.

[41] Although Mother claims that she only had five months following her release from incarceration to engage in DCS services before the termination hearing commenced, her failure to participate in offered services after her release established an unwillingness or inability to act as a parent. See In re C.D., 141 N.E.3d 845, 853 (Ind. Ct. App. 2020) (concluding that the reasons for child's continued removal were not remedied was established in part by mother's failure to complete services or remain sober), trans. denied. Additionally, Mother's refusal to respond to DCS personnel's text messages, her refusal to consider low-income housing unless it was in her preferred side of town, and her ongoing denial that she needed to address her substance use or cooperate with developing a budget are all patterns of behavior supporting the conclusion that the conditions that caused the initial removal of the Children from her care would not be remedied.

[42] Finally, we reject Mother's contention that the trial court terminated parent-child relationship solely because of her incarceration and A.L.’s death. As noted above, the trial court found that Mother was under the influence of methamphetamine when A.L. died in her care, notwithstanding her claim that she did not engage in any activity that contributed to A.L.’s death. The evidence further supported the trial court's conclusion that Mother failed to remain sober following her release from incarceration and that her continued drug and alcohol use contributed to her inability or unwillingness to provide the Children with a safe home environment. Mother's choice to participate in DCS services only a few weeks before the termination hearing, her pattern of refusing to address her drug and alcohol use, and her poor parenting decisions and lack of independent living skills far outweigh her involvement in DCS services just prior to the termination hearing. See, e.g., In re E.M., 4 N.E.3d at 642-43 (holding that the trial court has discretion to weigh a parent's past behavior more heavily than efforts made only shortly before termination).

[43] The trial court did not clearly err in concluding that Mother was unlikely to remedy the conditions that led to the Children's removal, and we decline to set aside the termination order.⁵

[44] Judgment affirmed.

FOOTNOTES

1.   G.L. was born on April 20, 2019.

2.   J.R. was born on May 12, 2021.

3.   Although J.R.’s father was also named in the involuntary termination of parental rights petition, he subsequently consented to J.R.’s adoption and was dismissed from the action. Additionally, while G.L.’s Father's parental rights were also terminated, he does not participate in this appeal. We therefore confine our discussion primarily to Mother and her relationship with the Children.

4.   Mother does not challenge the trial court's findings of fact.

5.   While Mother also contends that the trial court erred in concluding that DCS proved that continuation of the parent-child relationship poses a threat to the Children's well-being, I.C. § 31-35-2-4(d) is written in the disjunctive. We therefore need not address Mother's challenge to the sufficiency of evidence proving that element. See, e.g., Bester, 839 N.E.2d at 148 n.5 (observing that because the prior version of this statute, I.C. § 31-35-2-4(b)(2)(B), was written in the disjunctive, the trial court only needed to find one of the elements proven by clear and convincing evidence).

Altice, Chief Judge.

May, J. and Foley, J., concur.