In the Matter of the Termination of the Parent-Child Relationship of: D.B.S. (Minor Child), and Q. S. (Father) and D.S. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
May 14 2015, 8:44 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Q.S. ATTORNEYS FOR APPELLEE
Robert H. Bellinger, II Gregory F. Zoeller
The Bellinger Law Office Attorney General of Indiana
Fort Wayne, Indiana
Robert J. Henke
ATTORNEY FOR APPELLANT D.S. Abigail R. Miller
Deputy Attorneys General
Roberta L. Renbarger Indianapolis, Indiana
Fort Wayne, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination May 14, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: 02A03-1410-JT-384
Appeal from the Allen Superior
D.B.S. (Minor Child), Court.
and The Honorable Charles F. Pratt,
Judge.
Q.S. (Father) and D.S. (Mother) Cause No. 02D08-1311-JT-143
Appellants-Respondents,

v.

The Indiana Department of
Child Services,
Appellee-Petitioner

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 Baker, Judge.

[1] Q.S. (Father) and D.S. (Mother) appeal the juvenile court’s order terminating

the parent-child relationship between the parents and D.B.S. (Child). Mother

argues that the juvenile court should have dismissed the termination petition

because the termination hearing was held outside the 180-day timeframe

required by statute. Mother and Father both argue that there is insufficient

evidence supporting the termination order. Finding no error and sufficient

evidence, we affirm.

Facts
[2] Child was born to Mother and Father1 on December 2, 2011. Mother has a

lengthy history with the Department of Child Services (DCS). She has four

children aside from Child; she consented to the adoption of her oldest and her

parental rights have been terminated with respect to the other three.

[3] In 2012, Father was arrested for multiple criminal offenses and has been

incarcerated since that time. He was eventually convicted of class B felony

armed robbery and class B felony burglary and is serving a seven-year sentence.

His earliest possible release date is in April 2017 and he has not seen Child

since 2012.

1
Paternity has never been established; consequently, Father is Child’s alleged father.

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[4] On January 4, 2013, DCS received a report alleging that Mother was abusing

illegal substances, that Child was ingesting them, that Child’s medical needs

were not being met, and that Mother did not have safe and suitable housing.

On January 9, 2013, Mother was arrested. As a result of Mother’s

incarceration, DCS removed Child from Mother’s care and custody and filed a

petition alleging that Child was a Child in Need of Services (CHINS). Mother

and Father admitted that Child was a CHINS on February 7 and February 20,

2013, respectively.

[5] The juvenile court held a dispositional hearing with respect to Mother on

February 7, 2013. Among other things, Mother was ordered to complete a

substance abuse assessment and follow all recommendations; complete a

psychological assessment and follow all recommendations; submit to random

drug screens; refrain from illegal drug use and alcohol use; and attend all visits

with Child. Father’s dispositional hearing took place on February 20, 2013. As

Father was incarcerated, he was ordered to enroll in parenting classes and

complete a diagnostic assessment while incarcerated.

[6] Mother did not complete a psychological evaluation. She completed a drug

and alcohol assessment, but failed to complete the recommended substance

abuse classes. She tested positive for alcohol in March 2014 and synthetic

marijuana in May 2014. Mother attended only one visit with Child, and has

not seen Child since February 2013.

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[7] As a result of Mother’s arrest in January 2013, she was convicted of receiving

stolen property as both a class C felony and a class D felony. She was

sentenced to two years of probation. During the CHINS case, Mother served

thirty days in jail for a probation violation. At the time of the final day of the

termination hearing, there was an open arrest warrant for Mother for another

probation violation.

[8] During the course of the CHINS case, Mother lived at five different residences

and spent thirty days in jail. At the time of the termination hearing, she was

living with her boyfriend, who she characterized as “mentally different” and

“slow.” Tr. p. 75. Mother testified that if Child were returned to her custody,

she would move in with her sister because she felt “more comfortable having

my daughter around her than him.” Id. at 74. Mother has not had stable

employment throughout the duration of the case.

[9] Father has been incarcerated throughout the entirety of the CHINS and

termination cases. Before his incarceration, he did not regularly visit with

Child and did not provide for her financially. He has never established

paternity.

[10] On January 3, 2014, DCS filed a petition to terminate the parent-child

relationship between Mother, Father, and Child. The juvenile court held a

factfinding hearing on June 10, June 18, and July 8, 2014. Mother failed to

appear for the final two days of the hearing. On June 10, 2014, Father

appeared telephonically but was unable to remain on the phone for the full

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 hearing. His attorney requested a continuance as a result. Mother’s attorney

assented and did not object to the continuance, and the juvenile court granted

the request. On October 6, 2014, the juvenile court entered an order granting

DCS’s petitions to terminate the parent-child relationship between Mother,

Father, and Child. Mother and Father now appeal.

I. Timeliness of Termination Hearing
[11] First, Mother argues that the termination petition should have been dismissed

because the termination hearing did not occur within 180 days of the filing of

the petition. Indiana Code section 31-35-2-6 sets forth the requisite timeframe:

(a) Except when a hearing is required after June 30, 1999, under
section 4.5 of this chapter, the person filing the petition shall
request the court to set the petition for a hearing. Whenever a
hearing is requested under this chapter, the court shall:
(1) commence a hearing on the petition not more than
ninety (90) days after a petition is filed under this
chapter; and
(2) complete a hearing on the petition not more than one
hundred eighty (180) days after a petition is filed under
this chapter.
(b) If a hearing is not held within the time set forth in subsection
(a), upon filing a motion with the court by a party, the court shall
dismiss the petition to terminate the parent-child relationship
without prejudice.
(Emphasis added).

[12] In this case, Mother did not file a motion to dismiss with the juvenile court

based upon a lack of compliance with the 180-day rule. There is no

requirement, statutory or otherwise, for the juvenile court to dismiss the petition

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 sua sponte under these circumstances. Consequently, we find no error on this

basis.2

II. Termination Order
A. Standard of Review
[13] Our standard of review with respect to termination of parental rights

proceedings is well established. In considering whether termination was

appropriate, we neither reweigh the evidence nor assess witness credibility.

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

consider only the evidence and reasonable inferences that may be drawn

therefrom in support of the judgment, giving due regard to the trial court’s

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

court entered findings of fact and conclusions of law, we will not set aside the

findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

2
Although the lack of filing a motion to dismiss is enough to dispose of this argument, we also note that
Mother did not object to Father’s request of a continuance on June 10, 2014. Moreover, we note that Mother
failed to appear at the initial hearing in the termination case on January 3, 2014, causing the initial hearing to
be reset to February 5, 2014. Mother’s own actions, therefore, added to the length of time between the filing
of the termination petition and the factfinding hearing.

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 the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children,

839 N.E.2d 143, 148 (Ind. 2005).

[14] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least
six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or
reunification are not required, including a description of
the court’s finding, the date of the finding, and the
manner in which the finding was made.
(iii) 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;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that
resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
(ii) There is a reasonable probability that the continuation of
the parent-child relationship poses a threat to the well-
being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the
child.

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 DCS must prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1230.

[15] Mother and Father each argue that there is insufficient evidence establishing

that there is a reasonable probability that the conditions that resulted in removal

will not be remedied, that there is a reasonable probability that the continuation

of the parent-child relationship poses a threat to Child’s well-being, and that

termination is in Child’s best interests.

B. Conditions that Resulted in Removal
[16] In determining whether the conditions that led to a child’s removal will not be

remedied, the juvenile court must judge a parent’s fitness to care for her child at

the time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct.

App. 2010). The court must also, however, evaluate a parent’s habitual

patterns of conduct—including criminal history, substance abuse, and lack of

adequate housing and employment—to determine the probability of future

neglect or deprivation of the child. Id.; McBride v. Monroe Cnty. Office of Family

and Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).

[17] In this case, the following conditions led to Child’s removal and continued

placement outside of the parents’ home: Mother was incarcerated; Father was

incarcerated; Mother had substance abuse issues; Mother was failing to meet

Child’s medical needs; and Mother had unstable housing.

[18] With respect to Mother, the following evidence was produced at the hearing:

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  Mother completed a substance abuse assessment but only after four
referrals for the service. She failed to complete the recommended
substance abuse treatment. Tr. p. 24, 25, 158.
 Mother failed to complete the ordered psychological evaluation. Id. at
70, 158.
 Since Child’s removal on January 9, 2013, Mother visited Child only
once. Id. at 166-67.
 Mother lived at five different residences during the CHINS case. Id. at
87.
 Mother violated her probation once during the CHINS case and served
thirty days in jail as a result. Id. at 82. At the time of the termination
hearing, there was an open arrest warrant for Mother for another
probation violation. Id. at 160.
 Child has special medical needs and Mother has never engaged in
available services to learn how to meet those needs. Id. at 164, 167.

In other words, the evidence established that by the time of the termination

hearing, Mother had failed to make progress on even one of the conditions that

led to Child’s placement outside of her care and custody. We also note that she

failed to appear at the final two days of the factfinding hearing, further

evidencing her unwillingness to do what needed to be done to parent her child.

Therefore, we find that the evidence clearly and convincingly supports the

juvenile court’s conclusion that the conditions leading to Child’s removal and

placement outside of Mother’s care and custody will not be remedied.

[19] As to Father, the record reveals that he has been incarcerated throughout the

entirety of the CHINS and termination cases. Before his incarceration, he did

not visit regularly with Child, did not support Child financially, and failed to

establish paternity. His earliest possible release date is April 2017. In other

words, nothing whatsoever has changed with respect to Father since Child was

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 removed from his care and custody. Consequently, we find that the evidence

clearly and convincingly supports the juvenile court’s conclusion that the

conditions leading to Child’s removal and placement outside of Father’s care

and custody will not be remedied.3

C. Best Interests
[20] Finally, Mother and Father contend that there is insufficient evidence

supporting a conclusion that termination of the parent-child relationship is in

Child’s best interests. In determining what is in the best interests of a child, the

juvenile court is required to consider the totality of the evidence. In re A.K., 924

N.E.2d 212, 224 (Ind. Ct. App. 2010). In doing so, the court must subordinate

the interests of the parents to those of the child involved. Id.

[21] In this case, at the time of the termination hearing, Child had been removed

from parents’ care and custody for one and one-half years. Child had not seen

Father in over two years and had not seen Mother in over one year. During the

entire period of removal, Child lived in the same preadoptive foster home. She

was thriving in that home and was receiving the medical care she needed.

3
The parents also argue that the evidence does not support a conclusion that there was a reasonable
probability that the continuation of the parent-child relationship poses a threat to Child’s well-being. We
note, however, that the statute is phrased in the disjunctive. I.C. § 31-35-2-4. Inasmuch as we have already
found that the evidence supports a conclusion that the conditions resulting in removal will not be remedied,
we need not also consider this argument. We note, however, that the same evidence supporting our
conclusion in that regard likewise supports a conclusion that there was a reasonable probability that the
continuation of the parent-child relationship poses a threat to Child’s well-being.

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[22] Father’s earliest possible release date will be over four years since the date of

removal, and over five years since he last interacted with Child. While Mother

had every opportunity to engage in services to better her situation, she failed to

do so. At the time of the termination hearing, Mother did not have stable

housing, had not completed substance abuse or mental health treatment, and

had a warrant out for her arrest. And perhaps most fundamentally, Mother

visited with Child only once after Child was removed. The family case manager

and guardian ad litem both testified that they believe termination is in Child’s

best interests. Tr. p. 122-28, 164-65. This record amply supports the juvenile

court’s conclusion that termination of the parent-child relationship is in Child’s

best interests. Consequently, we find sufficient evidence supporting the order

terminating the parent-child relationship between Mother, Father, and Child.

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

Najam, J., and Friedlander, J., concur.

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