IN RE: the Involuntary Termination of the Parent-Child Relationship of T.L. (Minor Child) and H.L. (Mother) (2026)

MEMORANDUM DECISION

Case Summary

[1] H.L. (“Mother”) appeals the order involuntarily terminating her parental rights over T.L. (“Child”) upon the petition of the Jefferson County Department of Child Services (“DCS”).¹ The sole, restated issue on appeal is whether the trial court clearly erred when it terminated Mother's parent-child relationship with Child. Finding that it did, we reverse.

Facts and Procedural History

[2] Child was born on March 24, 2016, and lived with Mother. On September 25, 2018, DCS filed a petition alleging Child was a Child in Need of Services (“CHINS”) based on allegations of Mother's lack of adequate supervision of Child and Mother's refusal to submit to a drug screen. On November 8, Mother admitted, and the court found, that Child was a CHINS. After failed trial home visits (“THV”), Child was ultimately placed with the Imels, a foster family. Mother was subsequently diagnosed with a substance use disorder and was given a treatment plan that included individual therapy. Mother inconsistently engaged in services through DCS. While the CHINS case (“CHINS 1”) was pending, Mother pleaded guilty in two separate criminal cases. In cause number 39C01-2002-F3-171 (“F3-171”), Mother pleaded guilty to Level 5 felony corrupt business influence. In cause number 10C03-1904-F6-564 (“F6-564”), Mother pleaded guilty to Level 6 felony theft and criminal trespass. In both cases, Mother's sentences were suspended to probation.

[3] Following a successful THV that began in December, on March 10, 2021, CHINS 1 was closed due to Child's reunification with Mother. In March 2022, Mother completed probation in F6-564 and was discharged as successful but remained on probation in F3-171.

[4] On August 2, 2022, police conducted a home check of Mother's residence and found methamphetamine in a bedroom where Child slept and within Child's reach. Mother subsequently told police that she had used methamphetamine approximately twenty times in the previous two weeks. Mother was arrested, and she placed Child with his maternal grandmother, who was also a methamphetamine user. Soon thereafter, Child “ended up” in the care of Breahna McCully, a friend of Mother's. Appealed Order at 9. DCS discovered that McCully had a previous conviction for neglect of a dependent and informed Mother of Child's placement with McCully. Mother said she had no concerns about Child being placed with McCully because Mother was aware of McCully's prior conviction but believed it was not “based on something [McCully] did intentionally.” Id. DCS had “concerns in regards to Breahna McCully's history” but left Child in her care because there were no allegations related to Child at that time that would have justified DCS intervention. Tr. at 59.

[5] Mother was charged under cause number 39C01-2208-F4-828 (“F4-828”) with possession of methamphetamine, as a Level 4 felony, maintaining a common nuisance, as a Level 6 felony, and neglect of a dependent, as a Level 6 felony. Mother had telephone and video contact with Child prior to her sentencing. On April 28, 2023, Mother was sentenced pursuant to a plea agreement that included admitting to violating her probation in F3-171. In F4-828, Mother was sentenced to eight years executed in the Department of Correction (“DOC”) with no time suspended. In F3-171, Mother's probation was revoked, and she was ordered to serve four years executed in the DOC with no time suspended. Mother's earliest possible release date was in 2031. However, the court ordered Mother to complete the Recovery While Incarcerated (“RWI”) program in the DOC and noted that, after she had done so and completed serving four credit years, she would be permitted to request a sentence modification.

[6] On August 29, 2023, DCS investigated an allegation that McCully had physically abused Child. Child had significant bruising on his shoulders and forehead and a bruise in the shape of a handprint on his buttocks. McCully was arrested and charged with battery and neglect of a dependent and subsequently pleaded guilty to battery. Child was removed and placed with the Imels again. On August 30, DCS filed a CHINS petition (“CHINS 2”) alleging that McCully had physically abused Child, and Mother could not care for Child due to her incarceration, which was expected to continue for a “significant portion of the remaining time during which the child is less than eighteen (18) years of age.” App. v. 2 at 16. At the November 2 fact-finding hearing, Mother admitted that Child was a CHINS due to her incarceration. The court's November order on the fact-finding hearing ordered DCS “to provide[ ] virtual parenting time between the mother and the child.” Ex. v. 2 at 221.

[7] In a January 4, 2024, dispositional order, the court found “that the incarcerated parent has maintained a meaningful role in the child's life, and this order allows a reasonable opportunity for that parent to maintain that relationship by referrals to recommended services including parenting time and parenting classes[.]” Ex. v. 2 at 227. The court ordered Mother to engage in services, including: engaging in any program recommended by her DCS Family Case Manager (“FCM”); maintaining stable, suitable, safe housing; securing and maintaining a legal source of income; refraining from drug use; engaging in a parenting assessment; submitting to drug screens; and attending all scheduled visits.

[8] Mother had some visitation with Child while she was in jail awaiting sentencing. However, Mother did not have any in-person or video visitation with Child after she was transferred from jail to prison in August 2023. Mother had some telephone visitation with Child up until April 2023. Mother saw her FCM at monthly prison visits and consistently asked the FCM to set up visitation with Child, but DCS never did so. Three weeks after the court's November 2023 fact-finding order that Mother have visitation with Child, FCM Edward Stigall “reach[ed] out” to DOC to try to arrange Mother's visitation with Child, but no such visitation was ever arranged. Tr. at 111. Mother wrote letters to Child and gave them to FCM Stigall to pass on to Child, but FCM Stigall never did so.

[9] While in prison, Mother successfully completed the RWI program. In addition, “[s]he participated in classes” regarding such topics as “coping skills, grieving loss, parenting skills,․ cultivating relationships with peers, self-confidence, uncovering talents and skills, ‘Great Listener[,]’ and problem solving.” Appealed Order at 16. Mother also “maintained employment at DOC, completed assignments, was helpful to DOC staff, got along with peers, and worked to better herself.” Id.

[10] Child began seeing therapist Woody Patrick in September 2023. Patrick was informed that Mother was in prison, with an earliest possible release date in 2031. In January 2024, Ms. Imel, Child's foster mother (“Foster Mother”), had a baby and went on leave from teaching at Child's school. Child was upset that Foster Mother was no longer at his school and, in February 2024, Child began having behavioral problems. He made an inappropriate comment on the school playground about nipples. Although Child had seen Foster Mother nursing the new baby, Child subsequently told Patrick that, while he had lived with Mother, he witnessed her do “inappropriate type things” with men. Tr. at 21. Foster Mother informed Patrick that Child was to start phone visitation with Mother soon, and she was “concerned” about how Child would respond. Ex. v. 4 at 48. At a February 21 child and family team (“CFT”) meeting, Patrick noted that Child was “struggling more so the past several weeks due to placement mother being on maternity leave and not at school.” Id. at 53. Patrick “expressed concerns about [Child] starting phone visitations with his mother next month[,]” and noted that he had first learned about the visitation on February 16. Id.

[11] Until March 2024, Child did not mention wanting to see Mother. On March 13, Child told Patrick “that he wants to have a face time session with his mother.” Ex. v. 4 at 61. Child stated that “he has been thinking about his natural mother, especially after the [foster] family mentioned about going to the beach. [Child] remembers going to several beaches with his natural mother and sitting on the sand[,] playing.” Id. In April, Child told Patrick that, “if given the opportunity, [he] would like to have a phone call with his mother.” Id. at 79. On May 9, Child informed Patrick that Child felt “different at school due to his race/color of skin.” Id. at 95. Child stated that he “would like to speak with his biological mother to see what she looks like, however [Child] is afraid his [foster] placement would get upset.” Id. at 103. On May 24, Child informed Patrick that he “would like to see and speak with his mother (thinks about her often).” Id. at 111. On June 4, Child “explained he wants to have a visit with his mother. [Child] explained if his mother was here today he would say he misses her, how has she been doing, does she want to know how old he is, and when can he call.” Id. at 115.

[12] Child continued to have behavioral problems both at his foster home and at school, including making inappropriate sexual remarks. A July 2024 psychological evaluation of Child diagnosed him with attention deficit hyperactivity disorder (“ADHD”), post-traumatic stress disorder (“PTSD”), and “unspecified depressive disorder[.]” Id. at 21. Child was placed on new anxiety and ADHD medications that seemed to be helping him.

[13] In June and July, Child continued to state at each visit with Patrick that he consistently thought about Mother and wished to see her. On July 16, Child expressed concern that “something has happened to [Mother] (does not know why).” Id. at 134. Child “explained he thinks about his mother about two times a week and does not know what she looks like. [Child] explained he misses his mother, wants to visit with her, loves his placement, and would like to stay living with placement.” Id. On August 28, Patrick informed Child's CFT that Child had been asking for visitation with Mother “for about the past month.” Id. at 143. Patrick asked the CFT if he could read Mother's letters to Child and then discuss them with Child to “process his thoughts and feelings” on the subject. Id. On September 9, Patrick asked FCM Stigall for Mother's letters.

[14] Foster Mother reported to Patrick that Child continued to have behavioral problems. In September, Patrick recommended Child be referred to a psychiatrist “ASAP” and that no one read Child the letters from Mother until after Child had met with the psychiatrist. Id. at 149. Child continued to state that he regularly thought about and dreamed about Mother but “is afraid she[² ] will get mad if he says anything.” Id. at 164. In November, Child stated that he had not thought about Mother. However, he expressed concern “that he is being taken away today by DCS today [sic] (very worried). [Child] expressed to his [foster] mother that he loves living here and wants to stay. [Child] explained he has been to at least five different placements and wants to stay put.” Id. at 176. In December, Foster Mother sent a text to Patrick stating that Child had been acting out and crying because he was afraid “that someone is going to take him” away from the foster family. Id. at 184. When DCS subsequently asked for Patrick's recommendation regarding Child having visitation with Mother, Patrick stated, “[Child] is afraid of being removed from the [foster] home. Visitations could be detrimental to his psychological health. The facts and progress made, suggest Visitations [sic] are not in the best interest.” Id. at 189. By the end of December, DCS had still not referred Child to a psychiatrist as Patrick had requested.

[15] Child had also been assigned a court appointed special advocate (“CASA”) in CHINS 2. CASA Sara Scroggins filed regular reports with the court. In her March 28, 2024, report, CASA Scroggins stated that neither she nor Child's therapist

believe it is in [Child's] best interest and could actually be detrimental to his well-being for these video visits [with Mother] to take place. [Child] will not speak about his mother in therapy and gets agitated if she is mentioned. Placement also reports that if [Mother] is brought up, [Child] suffers from outbursts and setbacks in his behavior.

According to [Child's] therapist, visits with [Mother] through video would be detrimental to [Child's] behavioral progress. He has stated very clearly that he wants no contact with her.

[Child] believes he is currently in his forever home and that the Imels are his parents. He does not want to leave their home and has been very vocal to CASA about that.

Ex. v. 2 at 233.³

[16] That same month, DCS filed a motion for an order suspending the November 2023 order that Child have visitation with Mother, even though visitation pursuant to that order had never taken place. On April 10, following a hearing, the court issued an order granting that motion. The court noted that Mother had not had visitation with Child while in prison, “due in large part to nonresponsiveness of various prison officials[.]” Id. at 249. However, the court also noted that Child's CFT, including the CASA and Child's therapist, “feel[ ] that starting visits between the child and his mother in [prison] will be challenging and detrimental to [Child's] forward progress in addressing his trauma.” Id. The court noted that, “central to [Patrick's] opinion” are that Child has not had contact with Mother since her imprisonment, that Mother is “incarcerated with an earliest possible release date of 2031, and is therefore not a realistic permanency option at this time[,]” that Mother “is a source of significant trauma for [Child,]” that Child is “strongly bonded to his current placement and has made significant advancements in therapy[,]” and that visits with Mother “will cause additional trauma resulting in regression of the child's progress.” Id. at 250. Because it found that “visitation is not currently in the best interest of the child[,]” the court stayed the visitation order pending further motion by the parties. Id.

[17] With consent of the parties, the trial court investigated the possibility of Mother's release from prison prior to 2031 and determined that, while Mother's sentence could be modified after four years if she successfully completed the RWI program, there was no “guarantee” the modification would be granted. Ex. v. 3 at 6. Therefore, in an April 19 order, the court concluded that it was “in the best interest of the Child to continue the stay of the order compelling visits between mother and child.” Id.

[18] On June 26, 2024, DCS submitted its progress report. It recommended that Child's permanency plan be changed to add adoption as a concurrent plan to reunification with Mother. DCS stated that it had provided “[a]vailability of visitation with [Child].” Id. at 21. It recommended that Mother “continue participating in services the correctional facility offers until she is released from prison.” Id. at 22. On July 3, the trial court issued its order approving the proposed permanency plan. The court noted that Mother “has not had visits with [Child] at this time” and stated that DCS had made reasonable efforts to finalize permanency by “provid[ing] ․ the [a]vailability of visitation with child[.]” Id. at 27.

[19] In her September 17 report, CASA Scroggins noted that Patrick had “expressed concerns” at the last CFT meeting about “showing [Child] letters from his mother too soon despite the letters being positive in nature. He also stated that if visits were to happen, he would need coaching sessions with [Mother] in order to not upset [Child] and cause regression in his therapeutic progress.” Id. at 40. In its September 27 Order on Periodic Case Review, the trial court noted that Mother had completed the RWI program and was therefore “eligible to request a sentence modification on 3/3/25.” Id. at 43.

[20] However, on December 3, 2024, DCS filed a petition to terminate Mother's parental rights. In her report filed the following day, the CASA noted that Mother now had an earliest possible release date of “3/25” and that Mother was “looking into transitional housing[.]” Id. at 48. Nevertheless, the CASA stated that she agreed with the recent termination of parental rights (“TPR”) filing because it is in Child's “best interest in order to secure permanency.” Id. The CASA noted that the CFT had not yet referred Child to a psychiatrist, as was recommended.

[21] In its December 13 Order on Periodic Case Review, the trial court noted that Mother had “partially complied with the child's case plan” and had participated in services and been referred for additional services in DOC. Id. at 59. The permanency plan for Child was still reunification concurrent with adoption. The court ordered that DCS follow up with Patrick to obtain his recommendation regarding possible visitation between Child and Mother and report back to the court. In a December 23 “Notice of Visitation Update[,]” DCS reported to the court that Patrick opined that “visits could be detrimental to [Child's] psychological health and are not in his best interest.” Id. at 62. In a copy of an email attached to the Notice, Patrick stated, “From a therapeutic standpoint, [Child] is afraid of being removed from the [foster] home. Visitations could be detrimental to his psychological health. The facts and progress made suggest visitations are not in the best interest.” Id. at 63.

[22] In his final case note as Child's therapist, Patrick summarized a January 9, 2025, CFT meeting at which the team, including Foster Mother, discussed Child's continuing inappropriate sexualized behavior. Foster Mother expressed concerns about her own children being exposed to Child's sexual behavior and requested that home based services be placed on hold while she and her husband determined whether Child should remain in their home or be placed elsewhere. The FCM “spoke about a referral” to a psychiatrist and new therapist for Child. Ex. v. 4 at 31.

[23] On March 7, Mother filed her motion for modification of her sentence. On March 25, Child was removed from the Imels’ home at their request and placed in a new potentially pre-adoptive home. The Imels had requested that Child be removed from their home because Mr. Imel (“Foster Father”) had become a “heavy drinker.” Tr. v. 129. Although DCS believed removing Child from the Imels would be “detrimental” to Child and offered services to the Imels to help address Foster Father's drinking, the foster family insisted on removal. Id. The removal was “a traumatic experience” for Child. Id. Child began seeing a new therapist, Rose McClain, in April.

[24] Mother was granted a sentence modification and, on May 30, 2025, was released from prison. Upon her release, Mother immediately contacted FCM Stigall and requested that DCS provide her with services, including drug screening. DCS gave Mother a referral for drug screens, and she obtained such screens twice a week throughout the termination proceedings. Mother obtained transitional housing at Centerstone House, which also did random drug screens of Mother. Mother has not tested positive for drugs in any of those screenings.

[25] Through Centerstone, Mother engages in individual therapy and attends “several [AA] and [NA] meetings a week[.]” Appealed Order at 16. Mother “has sustained employment,․ exhibits time management skills, and [is] addressing ongoing trauma through Centerstone services.” Id. at 17. Mother has a sponsor who is a recovery specialist and peer coach; Mother's sponsor stated that Mother is doing “wonderful.” Id. Mother also has a “recovery and transitional coach” at Centerstone who stated that Mother participates in “12 Steps” programs and “relapse prevention.” Id. “According to her providers, Mother is doing all that could be expected of her by them.” Id. FCM Stigall has seen Mother's housing and it is “suitable, safe, and stable[.]” Tr. at 123. FCM Stigall confirmed that Mother also “has a stable and legal source of income.” Id.

[26] On August 15, 2025, the court conducted a TPR fact-finding hearing. McClain, Child's therapist since April, testified that she had spoken with Child about Mother in June and July, and Child “said that he feels like at this point [having contact with Mother] would make him feel very sad or feel too sad and that he doesn't feel like he's ready to have visits with her at this point.” Tr. at 48. She testified that Child becomes “fidgety” and “withdraw[s] away from the conversation” when they discuss Mother. Id. at 50. She noted that the last time they had discussed Mother, Child “actually crawled under the table [to] pull himself away from the conversation.” Id. at 53. McClain did not “feel like [Child is] ready for contact with his mom at this point” because “he's still working through a good bit of trauma and complex feelings about everything,” and she “think[s] that introducing that contact at this point would just confuse those feelings further.” Id. at 48. In order to “feel comfortable” recommending contact with Mother, McClain “would want to see ․ [Child] being able to verbalize that desire, as well as a consistent regulation with his emotional state while ․ having conversations about mom.” Id. at 50.

[27] Patrick also testified, and his treatment notes were admitted into evidence. Patrick stated that, while living with Mother, Child had witnessed “traumatic” incidents of Mother “doing inappropriate type things” with men. Id. at 21. He noted that Child had not “mentioned” wanting to have contact with Mother until March 2024. Id. Before then, Child had said that “he did not want to have contact with his mother.” Id. at 22. Patrick stated that, in the underlying CHINS 2 case, he had recommended that it would not be in Child's best interest to have contact with Mother.

[28] Mother also testified. She denied ever engaging in sexual activity in Child's presence but admitted that Child had been traumatized by her arrest and past drug use and needed ongoing treatment for his trauma.⁴ FCM Stigall also testified and confirmed that Mother and Child were bonded prior to the initiation of CHINS 2. He also confirmed that he did not attempt to provide visitation services for Mother until three weeks following the November 2023 court order for visitation. FCM Stigall stated that he “reached out” to DOC regarding visitation but no visits were ever set up. Id. at 111. He testified that he was “certain” Mother's release date of 2031 “probably” played a part in DCS's recommendation that her parental rights be terminated. Id. at 116. FCM Stigall confirmed that Mother currently had “suitable, safe, and stable housing,” and a “stable and legal source of income.” Id. at 123. He also confirmed that, since her release from prison in May 2025, Mother has “regularly” engaged in drug screening and all screens have been negative. Id. Those negative drug screen results were admitted into evidence. Nevertheless, after noting his “concern” that there is “always that possibility” that Mother would “reoffend or potentially place [Child] in jeopardy,” FCM Stigall testified that termination of Mother's parental rights was in Child's best interests. Id. at 105-06.

[29] CASA Scroggins testified that she believes termination of Mother's parental rights is in Child's best interests “to achieve his permanency.” Id. at 139. She noted that Child has been “a ward of the [S]tate for five and a half years of his nine years of life.” Id. at 140. While she “commend[ed Mother] for getting out [of prison] and ․ doing all the right things[,]” she noted her sobriety has not lasted in the past “without the oversight of probation or incarceration.” Id.

[30] On July 18, Mother had filed a motion for supervised visitation. On August 25, DCS objected on the grounds that the TPR action was pending and that McClain had testified that visitation was not in Child's best interests. On August 26, the trial court issued its order canceling a previously scheduled hearing on Mother's motion for visitation until such time as “Mother can establish new evidence not previously heard by the Court” or otherwise not in the record. Order on Motion to Establish Supervised Visitation, Cause No. 39C01-2308-JC-27.⁵

[31] On November 5, 2025, the trial court issued its findings of fact, conclusions of law thereon, and order terminating Mother's parental rights. The court found that Child “has significant trauma as a result of Mother's neglect and actions while in her care.” Appealed Order at 10. The court “view[ed] the circumstances of [Child's] removal not as [McCully's] physical abuse of [Child]” but as “one of the many heart-breaking and avoidable consequences of Mother's neglect.” Id. at 22.

[32] The court found that, since her release from prison, Mother has been “compliant with parole[,]” obtained employment and housing, passed all drug screens, and engaged in therapy, 12 step programs, relapse prevention, medication management, and other services. Id. at 16. Mother is “actively establishing treatment goals” and “addressing ongoing trauma through Centerstone services.” Id. at 17. However, Child “continues to suffer the consequences of the trauma that resulted from Mother's neglect[,]” his therapist does not believe contact with Mother is in Child's best interest, and both his CASA and FCM believe termination of Mother's parental rights is in Child's best interests. Id. at 18.

[33] Based on Mother's “history [that] includes years of arrests, flouting court authority by failing to appear, and violating court ordered supervision by committing major felony drug crimes[,]” the court determined that “there is a reasonable probability that Mother's behaviors will not change.” Id. at 25. In addition, based on “Mother's lengthy history of shockingly poor decision making while caring for [Child],” the court concluded that “Mother is not a fit parent” and “poses a threat” to Child's well-being. Id. at 30. And, based on the testimony of the CASA and FCM “that reunification was not in the child's best interests,” the trial court found that to be true. Id. at 31. Moreover, the court concluded that DCS had made “reasonable efforts” to reunify Mother and Child by making “a good faith effort to arrange for visits” while Mother was incarcerated. Id. at 27, 28. This appeal ensued.

Discussion and Decision

Standard of Review

[34] We begin our review by acknowledging that “[t]he Fourteenth Amendment of the United States Constitution protects the traditional right of parents to establish a home and raise their children.” Z.G. v. Marion Cnty. Dep't of Child Servs. (In re C.G.), 954 N.E.2d 910, 923 (Ind. 2011). The termination of those rights is “the most extreme sanction a court can impose on a parent[;]” it is, therefore, “intended as a last resort, available only when all other reasonable efforts have failed.” B.A. v. Ind. Dep't of Child Servs. (In re C.A.), 15 N.E.3d 85, 91 (Ind. Ct. App. 2014). At the same time, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Schultz v. Porter Cnty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). “The purpose of terminating parental rights is not to punish the parents, but to protect their children.” Id. at 836. Termination of a parent-child relationship is proper where a child's emotional and physical development is threatened. Id. at 837. Although the right to raise one's own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id. at 836.

[35] Before an involuntary termination of parental rights can occur in Indiana, DCS is required to allege and prove, among other things:

(1) the existence of one (1) or more of the circumstances described in subsection (d);

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

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

(d) A petition filed under subsection (a) must allege the existence of one (1) or more of the following circumstances:

***

(2) That:

(A) the child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child; and

(B) despite the department's reasonable efforts to preserve and reunify the child's family under IC 31-34-21-5.5, the parent has been unable to remedy the circumstances that resulted in the child being placed in care outside the parent's home.

(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(c), (d)(2)-(4) (2024).⁶ 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 I.C.§ 31-37-14-2).

[36] When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. E.M. v. Ind. Dep't of Child Servs. (In re E.M.), 4 N.E.3d 636, 642 (Ind. 2014). Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Moreover, in deference to the trial court's unique position to assess the evidence, we will set aside the court's judgment terminating a parent-child relationship only if it is clearly erroneous. Id.

[37] Here, in terminating Mother's parental rights, the trial court entered findings of fact and conclusions thereon. When a trial court's judgment contains special findings and conclusions, we apply a two-tiered standard of review. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports the findings and, second, we determine whether the findings support the judgment. Id. “Findings are clearly erroneous when there are no facts or inferences drawn therefrom that support them.” Ind. Dep't of Child Servs. v. LaPorte Cir. Ct. (In re T.S.), 906 N.E.2d 801, 804 (Ind. 2009). If the evidence and inferences support the trial court's decision, we must affirm. In re C.G., 954 N.E.2d at 923. When, as here, the findings of fact are unchallenged, this Court accepts them as true. L.M. v. Ind. Dep't of Child Servs. (In re S.S.), 120 N.E.3d 605, 608 n.2 (Ind. Ct. App. 2019). Thus, if the unchallenged findings clearly and convincingly support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct. App. 2015), trans. denied.

Conditions that Resulted in Removal/Continued Placement

[38] Mother challenges the court's conclusion that there is a reasonable probability that the reasons for Child's removal or continued placement outside the home will not be remedied. When we consider the likelihood of remediation of conditions, we engage in a two-step analysis. In re E.M., 4 N.E.3d at 643. “First, we identify the conditions that led to removal; and second, we determine whether there is a reasonable probability that those conditions will not be remedied.” Id. (quotations and citations omitted). In the first step, we consider not only the initial reasons for removal, but also the reasons for continued placement outside the home. T.Q. v. Ind. Dep't of Child Servs. (In re N.Q.), 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). In the second step, the trial court must judge a parent's fitness to care for his or her children at the time of the termination hearing, taking into consideration evidence of changed conditions. In re E.M., 4 N.E.3d at 643.

[39] The court must also “evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child.” Moore v. Jasper Cnty. Dep't of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted). The “trial court need not wait until a child is irreversibly harmed such that their physical, mental, or social development is permanently impaired before terminating the parent-child relationship.” A.B. v. Ind. Dep't of Child Servs. (In re P.B.), 199 N.E.3d 790, 799 (Ind. Ct. App. 2022), trans. denied. In evaluating the parent's habitual patterns of conduct, the court may disregard efforts made shortly before the termination hearing and weigh the history of the parent's prior conduct more heavily. R.C. v. Ind. Dep't of Child Servs. (In re K.T.K.), 989 N.E.2d 1225, 1234 (Ind. 2013). However, “termination of parental rights cannot be based entirely upon conditions which existed in the past, but which no longer exist.” Ma.J. v. Ind. Dep't of Child Servs. (In re Ma.J.), 972 N.E.2d 394, 401 (Ind. Ct. App. 2012) (citation modified). Such a focus “is akin to terminating parental rights [simply] to punish the parent.” A.M. v. Ind. Dep't of Child Servs. (In re C.M.), 960 N.E.2d 169, 175 (Ind. Ct. App. 2011). Furthermore, a determination of a reasonable probability that the reasons for removal from the parent will not be remedied “must be founded on factually-based occurrences as documented in the record—not simply speculative or possible future harms.” A.A. v. Ind. Dep't of Chil d Servs. (In re V.A.), 51 N.E.3d 1140, 1146 (Ind. 2016) (emphasis in original).

[40] Here, the underlying CHINS case for the TPR was CHINS 2. At the time CHINS 2 began, CHINS 1 already had been closed for over two years, upon Mother and Child's reunification. When CHINS 2 was filed in August 2023, it was based upon McCully's “physical abuse committed against [Child,]” Ex. v. 2 at 173, and Mother's inability to care for Child due to her incarceration that began in August 2022 and was “expected” to continue “for a significant portion of the remaining time during which the child is less than eighteen (18) years of age[,]” App. v. 2 at 16; see also Ex. v. 2 at 190, “Order Authorizing DCS to File a Petition” (finding Child's continued residence in the home of the custodian would be contrary to Child's health because of “alleged physical abuse”).

[41] By the time of the August 2025 termination hearing, McCully had been convicted and sentenced for battering Child and, of course, Child had not been in her care for approximately two years.⁷ Most importantly, Mother was no longer incarcerated at the time of the TPR hearing. Through her own efforts while imprisoned,⁸ she had successfully completed services provided by DOC, including the RWI program and classes on coping skills, grieving and loss, parenting skills, cultivating relationships, self-confidence, utilization of talents and skills, and problem solving. Mother had also maintained employment while incarcerated, had repeatedly and consistently requested visitation with Child, and had regularly written letters to Child. In May 2025, Mother's self-rehabilitation efforts were rewarded when she was granted an early release from prison into Community Corrections. There, she obtained safe, stable housing and stable, legal employment. Upon her release from prison, Mother immediately sought out and obtained drug testing from DCS and random drug testing from her transitional housing. All drug test results were negative. At the time of the TPR hearing in August, Mother had been actively engaged in multiple, on-going services, including individual therapy, addiction and recovery programs, and relapse prevention. Mother was “doing all that could be expected of her” by her service providers. Appealed Order at 17. In sum, at the time of the termination hearing, the reasons for Child's placement outside of Mother's care no longer existed; Mother was out of prison, had complied with the services ordered at the January 4, 2024, dispositional hearing, and had put herself into a position where she was able to care for Child.

[42] The trial court correctly noted that it was entitled to weigh Mother's “habitual pattern of conduct” more heavily than “efforts made shortly before the termination hearing.” In re K.T.K., 989 N.E.2d at 1234. However, “the factors identified by the trial court as conditions that will not be remedied are relevant only if those conditions were factors in DCS's decision to place [the child] in foster care in the first place.” In re V.A., 51 N.E.3d at 1148 (citation modified). Here, the trial court erred by weighing Mother's conduct years before CHINS 2 was even filed more heavily than Mother's most recent two years of continuous, successful efforts to place herself in a position to care for Child. The trial court's determination that there is a reasonable probability that the reasons for Child's removal or continued placement outside Mother's home will not be remedied was based exclusively “upon conditions which existed in the past, but which no longer exist.” In re Ma.J., 972 N.E.2d at 401. That is, the trial court's ruling relied upon Mother's criminal history, drug use and distribution, and prior neglect of Child. However, when CHINS 2 was filed in August 2023, Mother had not engaged in any of those behaviors for at least one year; rather, Mother had been incarcerated for a year, during which time she was drug free, engaging in services through DOC, and consistently requesting visitation with Child. We have decided under similar circumstances that there was insufficient evidence that the reasons for removal would probably not be remedied. See, e.g., Rowlett v. Vanderburgh Cnty. Off. of Fam. & Child., 841 N.E.2d 615, 622 (Ind. Ct. App. 2006) (finding insufficient evidence where incarcerated parent had completed services while in prison, “had not used drugs while incarcerated,” was soon to be released from prison, and had secured employment and a plan for services to maintain sobriety following his release), trans. denied.

[43] The trial court also relied on Mother's current lack of bond with Child and therapist observations that Child did not wish to have contact with Mother and doing so might harm him. However, those conditions did not exist at the time CHINS 2 was filed. Rather, Mother and Child were bonded at that time, and the trial court specifically found in its dispositional order that “the incarcerated parent has maintained a meaningful role in the child's life,” and should be allowed “a reasonable opportunity ․ to maintain that relationship by referrals to recommended services including parenting time․.” Ex. v. 2 at 227. No such referrals were ever made. There is evidence that DCS delayed for over two months before it made minimal attempts to set up visitation at DOC. There is also evidence that the failure to provide visitation was due to DOC's unresponsiveness to DCS's request. However, there is no evidence that the failure to visit with Child was Mother's fault; rather, the findings show that Mother repeatedly and consistently requested visitation with Child. Mother also requested that DCS pass on to Child letters she had written, but DCS never did so.

[44] The only basis for DCS not placing Child with Mother at the time CHINS 2 was filed was her incarceration that was expected to continue until 2031, and that condition no longer existed at the time of the TPR hearing.⁹ Rather, the trial court's findings show that Mother was placed in Community Corrections, had stable, sufficient housing and income, and was drug free and actively engaged in services to remain that way. Thus, it was not only probable that Mother would remedy the reasons for Child's placement outside her home; the findings establish that Mother actually had remedied those reasons.¹⁰ The trial court clearly erred in finding otherwise.

Threat

[45] Mother also challenges the trial court's conclusion that the continuation of her relationship with Child poses a threat to Child's well-being. To prove this factor clearly and convincingly, the evidence need not reveal that the continued custody of the parent is wholly inadequate for the child's very survival; rather, it is sufficient to show that the child's emotional and physical development are threatened by the parent's custody. In re C.A., 15 N.E.3d at 92. However, parental rights should be terminated only when parents are “unable or unwilling to meet their responsibilities as parents.” K.T. v. Ind. Dep't of Child Servs. (In re O.G.), 159 N.E.3d 36, 44 (Ind. Ct. App. 2020), trans. denied. Where a parent is “fit and available” to parent a child, parental rights should not be terminated. Id. at 44. Moreover, while a court should consider a child's need for permanency as one factor in determining the child's well-being, “a need for permanency alone is not sufficient to support termination of parental rights.” D.T. v. Ind. Dep't of Child Servs. (In re K.T.), 137 N.E.3d 317, 329 n.8 (Ind. Ct. App. 2019) (citation modified). Similarly, the mere recommendation of termination made by DCS's witnesses is not a sufficient basis. See R.J. v. Lake Cnty. Off. of Fam. & Child. (In re R.J.), 829 N.E.2d 1032, 1038 (Ind. Ct. App. 2005).

[46] Here, the trial court found that Mother “is not a fit parent” but based that finding entirely on Mother's “history of shockingly poor decision making while caring for [Child].” Appealed Order at 29. That is, the threat finding was not based on Mother's current behavior and circumstances but on behavior that had occurred a year or more before CHINS 2 was even filed. However, “none of that carries any weight if Mother is [currently] a willing and able parent.” In re O.G., 159 N.E.3d at 44 (citing Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992)), trans. denied. In In re O.G., for example, a panel of this Court concluded that there was insufficient evidence that Mother posed a threat to her child where the trial court had “focused entirely on Child's struggles with prior reunification efforts, that future reunification efforts would be hard on Child, and that Child is comfortable with his foster family.” Id. We noted that Child's significant anxiety, behavioral problems, and expressed desire to avoid contact with his mother during the underlying CHINS and TPR cases were “insufficient reasons to break the parent-child relationship” where those conditions were not based on any action by Mother during the proceedings and were exacerbated by DCS's “lackluster reunification attempts.” Id. at 45.

[47] Here, too, Child's behavioral problems and anxiety are not based on anything Mother has done or not done during the underlying CHINS 2 and TPR proceedings; the only actions by Mother cited by the trial court in support of the threat finding were Mother's “poor parenting decisions when [Child] has been in her care” in the past. Appealed Order at 30. However, none of those poor parenting decisions had occurred since at least a year before CHINS 2 was filed. Rather, the trial court found that Mother currently has stable housing, employment, and services designed to assist her in maintaining sobriety and that Mother has, in fact, remained drug free since August 2022. Those findings support a conclusion opposite to that reached by the trial court; that is, Mother is currently a fit parent and does not pose a threat to Child's well-being.

[48] Both Child's therapists and the trial court emphasized that Child currently suffers from trauma and that contact with Mother may cause regression in his therapy progress. But, at the time CHINS 2 was filed, Mother and Child were bonded and had a relationship that the trial court found—and ordered—should be maintained through visitation and other services. The lack of post-removal contact while Mother was in prison was not due to Mother but to the inactions of others, including DCS's failure to timely seek and arrange visitation ¹¹ and Patrick's failure to inform the CFT that Child had consistently requested visitation with Mother for a period of seven months, i.e., from March to November 2024.¹² Compare, e.g., A.C. v. Marion Cnty. Dep't of Child Servs. (In re H.T.), 901 N.E.2d 1118, 1122 (Ind. Ct. App. 2009) (finding the trial court clearly erred in concluding Father's relationship with Child posed a threat where the court had found that, at the time of the TPR hearing, Father was “willing and able to complete any services and become the custodial parent of his daughter” and post-removal lack of visitation was not Father's fault).

[49] The trial court clearly erred when it found Mother's relationship with Child poses a threat to Child's well-being. Because none of the factors under Indiana Code § 31-35-2-4(d) were proven by clear and convincing evidence, the termination of Mother's parental rights cannot stand, and we need not address the Child's best interests factor. See K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 651 (Ind. 2015).

Conclusion

[50] The unchallenged factual findings do not clearly and convincingly support the trial court's determinations that there is a reasonable probability that Mother will not remedy the reasons Child was placed outside her care or that Mother's relationship with Child poses a threat to Child's well-being. Therefore, we reverse.

[51] Reversed.

FOOTNOTES

1.   L.K., Child's alleged father, whose parental rights were also terminated, does not participate in this appeal.

2.   Patrick's notes do not disclose to whom Child was referring when he said he was afraid “she” will get mad. Id. at 164.

3.   Thus, the CASA's March report conflicts with Patrick's March report, the latter of which noted that Child had said on March 13 that he was thinking about Mother and wished to see her.

4.   Thus, DCS is wrong when it claims in its brief that Mother “did not acknowledge she had any responsibility for any of the trauma Child experienced other than his [sic] seeing her arrested.” Appellee's Br. at 26. Mother agreed that “using methamphetamine around [Child]” also caused trauma to Child. Tr. at 78.

5.   The order is not in the record on appeal and was accessed via the Odyssey case management system.

6.   Subsection (d)(5) provides DCS may also allege as a basis for termination “[t]hat the child has, on two (2) separate occasions, been adjudicated a child in need of services.” I.C. § 31-35-2-4. There appear to be no Indiana cases in which a termination was based solely upon the filing of two CHINS cases. However, as DCS did not allege, and the court did not find, the filing of two CHINS cases as a basis for termination in this case, we need not address the issue further.Subsection (d)(8) provides DCS may also allege as a basis for termination that “[t]he parent is expected to remain incarcerated for a significant portion of the remaining time during which the child is less than eighteen (18) years of age.” I.C. § 31-35-2-4(d)(8)(A). Although DCS listed this reason in its TPR petition, the trial court did not rely on that basis for termination, as Mother was no longer in prison at the time of the TPR hearing.

7.   The court did not find, as DCS inaccurately claims, that Mother still believed McCully was an “appropriate caregiver” at the time of the hearing. Appellee's Br. at 23. Rather, Mother testified that she did not believe McCully had been “wrongly convicted” for the abuse of Child. Tr. at 70. Nor did Mother decide to place Child with McCully, as DCS also inaccurately claims. See Appellee's Br. at 26. Rather, the trial court's unchallenged factual finding was that Mother placed Child with maternal grandmother, and Child subsequently “ended up” in McCully's care. Appealed Order at 9.

8.   DCS provided no referrals for services while Mother was incarcerated.

9.   DCS emphasizes that Mother is in Community Corrections and could be sent back to prison if she fails to comply with any term of her placement. However, it is well-established that “incarceration [alone] is an insufficient basis for terminating parental rights.” K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 643 (Ind. 2015). Rather, length of future imprisonment is just one factor to be considered alongside other evidence of changed conditions. Id. Moreover, termination may not be based on purely “speculative or possible future harms.” In re V.A., 51 N.E.3d at 1146.

10.   For this same reason, DCS failed to prove by clear and convincing evidence that Mother had “been unable to remedy the circumstances that resulted in the child being placed outside the parent's home” as required for a termination of parental rights under I.C. § 31-35-2-4(d)(2). Therefore, we need not—and do not—address whether DCS provided “reasonable efforts to preserve and reunify the child's family[,]” as also required by that subsection. Id.

11.   Despite the CHINS court's and DCS's statements in progress reports that DCS was “provid[ing] the [a]vailability of visitation with Child,” the unchallenged factual findings disclose that that is not true. Ex. v. 3 at 21, 27. We further note that DCS not only failed to schedule visitation but also delayed the possibility of Child reading Mother's letters by failing to schedule Child for a meeting with a psychiatrist, a step Patrick said must take place before he could recommend disclosing the letters to Child.

12.   On August 28, 2024, Patrick told the CFT that Child had been asking for visitation with Mother “for about the past month[,]” but there is no evidence that he ever mentioned or raised Child's prior or subsequent statements regarding Mother to the CFT or anyone else at DCS. Ex. v. 4 at 143.

Bailey, Judge.

Vaidik, J., and Scheele, J., concur.