In the Matter of the Term. of the Parent-Child Relationship of: K.R. (minor child) and T.R. (mother) v. The Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Dec 31 2015, 8:18 am
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 ATTORNEYS FOR APPELLEE
Michael J. Spencer Gregory F. Zoeller
Monroe County Public Defender Attorney General of Indiana
Bloomington, Indiana
Robert J. Henke
David E. Corey
Deputy Attorney Generals
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination December 31, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: 53A05-1507-JT-858
K.R. (minor child) Appeal from the Monroe Circuit
and Court
The Honorable Frances G. Hill,
T.R. (mother) Judge
Appellant-Respondent, Trial Court Cause No.
53C06-1408-JT-488
v.

The Indiana Department of
Child Services,
Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 1 of 25
Pyle, Judge.

Statement of the Case
T.R. (“Mother”) appeals the trial court’s order terminating her parental rights to

her minor daughter, K.R.1 She argues that the trial court abused its discretion

when it denied her motion to continue the termination hearing. Alternatively,

she argues that the trial court erred when it terminated her parental rights

because there was insufficient evidence that the conditions that led to K.R.’s

removal and continued placement outside of her care would not be remedied.

Because we conclude that Mother did not demonstrate good cause to continue

her termination hearing and because the trial court’s findings and conclusions

supported its judgment that Mother would not remedy the conditions that led to

K.R.’s removal, we affirm.

We affirm.

Issues
1. Whether the trial court abused its discretion when it denied
Mother’s motion to continue the termination hearing.

2. Whether the trial court erred when it terminated Mother’s
parental rights to her minor daughter, K.R.

1
K.R.’s father’s parental rights are not at issue here as he voluntarily relinquished his parental rights prior to
the termination hearing.

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 2 of 25
 Facts
[1] Mother has four children, two of which are eighteen years old or older and two

of which are minors. Her youngest daughter, K.R., was born in July 2010. 2

Mother was involved with the Department of Child Services (“DCS”) with her

older children when they were younger, and she was involved with DCS when

K.R. was born because she admitted to using marijuana and prescription pills

while she was pregnant. However, the reasons for, and extent of, DCS’s

involvement in each of these prior cases is unclear based on the record.

[2] On June 18, 2013, when K.R. was three years old, law enforcement officers

found her unattended and strapped into a seat in Mother’s van. The

temperature outside was eighty degrees, the windows of the van were closed,

and Mother had left K.R. in the van by herself for thirty to thirty-five minutes.

As a result, the officer arrested Mother and placed K.R. into a relative’s care.

Thereafter, the State charged Mother with Class D felony neglect of a

dependent. She bonded out of jail but, as a condition of her bond, was required

to report for day reporting through community corrections.

[3] After K.R.’s removal, the investigating case manager for DCS spoke with

Mother, and she admitted to using K2 spice, an illegal drug, around the same

time that K.R. had been removed. However, she claimed that she did not need

substance abuse treatment because she could quit whenever she wanted.

2
Only K.R. is the subject of this appeal.

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 3 of 25
 Nevertheless, on June 25, 2013, DCS filed a petition alleging that K.R. was a

child in need of services (“CHINS”).3

[4] Subsequently, DCS began providing Mother with reunification services. It

assigned Kevin Bezy (“FCM Bezy”) as Mother’s family case manager in June

of 2013. At the time, Mother did not have stable housing or employment, so

FCM Bezy had trouble keeping in contact with her because she did not give

him a valid address or phone number. Mother stayed with her brother for a

while, and FCM Bezy went to that address at least a couple of times trying to

reach her, but he never found anyone home. He left a note for Mother on her

brother’s door each time, but she never responded. As a result, FCM Bezy’s

contact with Mother was “sporadic.” (Tr. 80). It later became clear that

Mother’s brother was involved in criminal activity in his house because, in

October of 2013 or 2014, police officers “raided” the house and found

methamphetamine.4 (Tr. 28).

[5] In the meantime, Alyson Grider (“Grider”), a visit supervisor with Family

Solutions, was assigned to conduct supervised visitation for Mother and K.R.

Based on FCM Bezy’s input and Mother’s agreement, Grider established that

3
For different reasons that are not specified in the record, Mother’s other minor child was also the subject of
CHINS proceedings during this time period. At the time of the termination hearing, her other minor child
was due for a dispositional hearing.
4
It is not clear whether this occurred in October 2013 or 2014. DCS states in its brief that it occurred in
2013, which was when Mother was living with her brother. However, at the termination hearing, DCS asked
Mother: “In fact, you’d stated . . . in October 2014 . . . the police raided that home, correct?” and Mother
replied, “Yes.” (Tr. 28).

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 4 of 25
 Mother would visit K.R. twice a week for three hours each visit. However,

over the next few months, Mother’s participation in visitation was irregular.

Her inconsistency resulted, in part, from her continued criminal activity.

Mother was non-compliant with her day reporting requirement, and the court

issued multiple warrants for her arrest over the next few months. In addition,

on August 13, 2013, Mother was charged with Class D felony theft as a result of

stealing her grandmother’s tool box and checks.5 Due to these circumstances,

Mother was in jail from July 13 to August 12, 2013 and from October 28 to

October 30, 2013. After both of these periods in jail, she was released with the

requirement that she continue day reporting. However, she was not compliant

with this requirement, and on December 7, 2013, she was arrested and held

without bail. She remained incarcerated through the remainder of the CHINS

and termination proceedings.

[6] On November 20, 2013, prior to Mother’s last incarceration, the trial court held

a fact-finding hearing on DCS’s petition alleging that K.R. was a CHINS. It

determined that K.R. was a CHINS and held a dispositional hearing on

January 30, 2014. Subsequently, it entered a dispositional order requiring

Mother to participate in services “to the extent possible” considering her

incarceration. The services it ordered included: (1) a mental health evaluation;

5
It is not clear from the record which of these actions was the factual basis for the charge, and Mother later
testified at the termination hearing that she could not remember.

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 5 of 25
 (2) contact with the child; (3) parenting classes; and (4) drug treatment. (DCS’s

Ex. 1 at 6).

[7] On February 12, 2014, Mother pled guilty to her neglect of a dependent and

theft charges. The trial court sentenced her to two years (2) executed on the

neglect of a dependent conviction and three (3) years, with 728 days suspended,

on the theft conviction. It further ordered Mother to serve the sentences

consecutively.

[8] While incarcerated, Mother completed a parenting class, a three-day program

called The First 180 days, which addressed re-entry into society; the

Standardized Pre-Released Orientation Program, a program felony offenders

are required to take that is designed to prevent recidivism; and a faith-based

seminar presented by Gone Fishing and Clearwater Ministries. Mother also

started a literacy program and a program called Triple R, which was

“something like a mother’s class[.]” (Tr. 9). However, she had disciplinary

problems in the Triple R program. One report noted that she was:

begging other program participants for food, manipulating staff
to make phone calls, gossiping and spreading rumors amongst
other negative behaviors and when told not to do these things
would still do them. She would sign out of programming to go to
her caseworker’s office when she had not been called for and it
was not [the caseworker’s] open door time.

[9] (App. 199). As a result, the coordinators of Triple R told Mother that if she had

any more disciplinary problems, she would be terminated from the program.

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 6 of 25
 Thereafter, she was caught cheating in her literacy class and was, therefore,

terminated from both the literacy and Triple R programs.

[10] In addition to Mother’s misconduct in the Triple R program, she also received

several institutional reprimands. In 2014, she was written up once for refusing

to obey an order and twice for tobacco possession, which was not permitted. In

2015, she was written up twice for refusing an assignment and once for

“[i]nadequate [w]ork/[s]tudy performance.” (App. 199). The write-ups for

refusing an assignment occurred because she had been assigned to work in the

Madison State Hospital kitchen but was terminated because she frequently was

sick or asked to be returned to the prison. She received the write-up for

inadequate work/study performance because she was fired from her job.

However, Mother did work on a road crew for six or seven months.

[11] Other than the above programs that Mother completed while incarcerated, she

did not complete any services except for visitation. Initially, both DCS and the

Court Appointed Special Advocate (“CASA”) were opposed to K.R. visiting

mother in prison. Mother petitioned the court for visitation, however, and in

September 2014, the court ordered K.R. to be brought to the prison for

visitation. They visited three or four times in total during the seven months

Mother was incarcerated.

[12] On June 19, 2014, the trial court held a hearing and changed K.R.’s

permanency plan from reunification to adoption. Thereafter, on August 13,

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 7 of 25
 2014, DCS filed a petition to terminate Mother’s parental rights. The trial court

held a termination hearing on April 7, 2015, when K.R. was four years old.

[13] On the morning of the hearing, Mother moved for a continuance. She stated

that she was due to be released from prison in twenty-three days and requested

that the court allow her two months after her release to prove that she was

willing and able to parent K.R. before it conducted a termination hearing. DCS

objected to Mother’s motion and argued that the delay would harm K.R.

because she had already been removed from Mother’s care for over twenty-two

months. DCS also noted that Mother’s request for an extra two months could

result in an even more significant delay due to CASA’s limited availability over

the summer. Further, DCS noted that K.R. needed permanency and that her

foster placement was willing to adopt her. After hearing the parties’ arguments,

the trial court denied Mother’s motion for a continuance and proceeded with

the hearing.

[14] During the hearing, Mother admitted that she had declined to take advantage of

services that DCS had provided for her. DCS asked her why she had declined

to utilize the services of a home-based case manager who had been referred to

help her look for a job, and Mother replied that she believed she was “capable

of trying to find stuff on [her] own.” (Tr. 30). She also acknowledged that she

had failed to participate in any of the other services DCS had provided in the

five months before her incarceration because she had been “getting in and out

of trouble.” (Tr. 72). She claimed that she had focused her attention on

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 8 of 25
 visitation during that time, but she acknowledged that her visitation attendance

had nevertheless been inconsistent.

[15] As for her participation in services after her incarceration, Mother testified that

she could not remember which services the trial court had ordered her to

complete. When asked, she acknowledged that she had not received drug

treatment, a mental health evaluation, or any individual counseling. She also

admitted that she had not asked her family case manager or public defender

how she could complete the mental health evaluation requirement, but she

refused to acknowledge that she needed counseling.

[16] With regard to her criminal activity, Mother stated she had stolen from her

grandmother because she had been trying to get money for bills while she was

staying in her brother’s trailer, and she “[did not] see how that [was] a crime.”

(Tr. 37). She also said that she had “continued to use illegal drugs [during her

pregnancy with K.R.] knowing that [they were] illegal and that [K.R.] could

potentially be removed from [her] care.” (Tr. 27).

[17] Next, FCM Bezy testified and stated that Mother had not requested any

services or visitation. He also testified that she had not been confused about

which services the court had ordered her to complete. He had talked to Mother

at one point during her incarceration about her lack of participation, and she

had given several reasons for her non-compliance. The reasons varied in nature

from “she knew she had an arrest warrant out so she didn’t want to be picked

up at a visit, to . . . just not being able to get a ride [to having] other errands to

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 9 of 25
 run at that time.” (Tr. 83). FCM Bezy testified that Mother’s home-based case

manager could have helped Mother with transportation for services, but Mother

had never asked for any help. He also testified that Mother had failed to attend

any of DCS’s child and family team meetings, which he described as meetings

where the service providers for Mother had “talk[ed] about the case progress”

and “develop[ed] a plan” to meet the family’s goals. (Tr. 84). He said that he

had given Mother the dates and times for these meetings, which had been about

once a month, and that she had never told him why she had not attended them.

[18] FCM Bezy also discussed Mother’s parenting skills. He testified that he had

observed one of her visits with K.R. and thought that the visit had gone well.

Mother had been affectionate with K.R., and he had not observed any behavior

that concerned him. However, he mentioned that at one point Mother had told

him that she did not understand why DCS had been required to remove K.R.

He found it “a concern” that she still had not understood why K.R. had been

removed. (Tr. 87).

[19] Mother’s home-based case manager, Samantha Harrell (“Harrell”), also

testified at the hearing concerning Mother’s completion of services. She said

that she had received a referral from DCS on October 2, 2013, to provide

weekly home-base management services for Mother, beginning in October

2013. She had attempted to contact Mother multiple times, though, and had

experienced trouble reaching her. She had left messages, but the only time she

had heard from Mother in October had been on one occasion when Mother had

called to ask for a ride to the store. Harrell had encouraged Mother to set up a

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 10 of 25
 time to meet with her at her office, but Mother had not done so. Mother had

also failed to attend any appointments for home-based case management in

November and December. Harrell testified that Mother had called once in

November to say that she was in Greene County and did not have access to a

phone. Then, Mother had called a second time to see if Harrell could contact

her probation officer to help her get off of probation. Harrell had encouraged

Mother to contact a DCS worker and then had not heard from her until she had

found out in December that Mother had been arrested and was in jail again.

Harrell testified that she had never had a chance to meet with Mother to set

goals and determine how Mother wanted to proceed. She also explained that

providing transportation to run errands, as Mother had requested, was not a

normal function of home-based case management.

[20] Mother’s two visitation supervisors, Grider and Nicholas Bartalone

(“Bartalone”), testified regarding Mother’s parenting during visits with K.R.

Grider, who supervised Mother’s visits from June to September 2013, noted

that Mother could have had eight visits per month during this time if she had

scheduled every visit she had been allowed to schedule. However, Mother had

scheduled only eleven total visits and had attended only five out of those eleven

visits. Grider said that Mother had cancelled one of these visits because she

had been worried that her family would report the visit to the police and she

would be arrested because of her outstanding arrest warrant. Grider further

noted that she had provided Mother with transportation to some of the visits

and that, on the way to an August visit, Mother had been “paranoid” about her

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 11 of 25
 arrest warrant and was “always looking for cops.” (Tr. 127). She said that

Mother had also refused to provide Grider with her address due to her concerns

about the warrant.

[21] As for the visits that Mother had attended, Grider said that Mother had failed

to provide necessary supplies for K.R. The guidelines for visitation, which

Mother had signed, had stated that parents were required to bring supplies for

their children during visits. Grider said that, eventually, K.R.’s foster

placement had provided K.R.’s necessary supplies, even though doing so had

violated the visitation guidelines. Grider also said that she had needed to

redirect Mother from discussing subjects pertinent to her case in front of K.R.

However, Grider testified that Mother’s interactions with K.R. had been

“positive” and that she had not had any safety concerns. (Tr. 37). K.R. had

always been happy to see Mother.

[22] Bartalone took over as Mother’s visitation supervisor in September 2013. He

testified that he had consulted with Mother about the visitation schedule, and

Mother had not objected to continuing the visit schedule of two three-hour

visits per week. Between September and December 2013, Mother had attended

six out of the twenty visits that were scheduled. She had never requested to

make up missed visits, and she had never contacted Bartalone to request a

different day or time for scheduled visitation. Mother also had not attended

any visits in November. However, like Grider, he had not had any concerns

with Mother’s parenting during the visits that she had attended.

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 12 of 25
[23] Mindy Wright (“FCM Wright”), who became Mother’s family case manager in

January of 2015, testified at the hearing that DCS had made all of the services

in the trial court’s dispositional order available to Mother. They had referred

her for supervised visitation, a mental health evaluation, a drug and alcohol

assessment, and home-based case management with a parenting evaluation.

She testified that DCS had not provided services to Mother in prison because it

did not contract with any service providers who would provide services in

prison. However, she stated that Mother had never contacted her about

completing services or about the service options that would be available to her

after her release from prison.

[24] Finally, the CASA volunteer appointed to represent K.R., Vicki Mellady

(“Mellady”), testified that she believed it was in K.R.’s best interests for

Mother’s parental rights to be terminated. She thought that K.R. had not

exhibited any signs of having a closer relationship with Mother than any of the

other people in her life. In addition, Mellady said that she believed that the

conditions that had led to K.R.’s removal had not been resolved because

“[K.R.] was not the person that mom always thought about. . . . [M]om always

put herself first.” (Tr. 207).

[25] After the hearing, on July 1, 2015, the trial court entered its order terminating

Mother’s parental rights. Mother now appeals.

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 13 of 25
 Decision
[26] Mother raises two issues on appeal: (1) whether the trial court abused its

discretion when it denied her motion to continue the termination hearing to

allow her more time to complete services; and (2) whether the trial court erred

in terminating her parental rights based on its conclusion that the conditions

that had led to K.R.’s removal from the home and continued placement outside

of the home would not be remedied. We will address each of these arguments

in turn.

1. Motion to Continue

[27] First, Mother argues that the trial court abused its discretion when it denied her

pre-hearing motion to continue the termination hearing. She argues that she

was due to be released from prison within twenty-three days and that a

continuance would have allowed her to demonstrate her interest in and ability

to parent K.R. outside of prison, since prison had impeded her completion of

services. She also argues that DCS did not have an urgent need to terminate

her parental rights because K.R. was already living in her pre-adoptive home.

[28] The decision to grant or deny a motion for a continuance rests within the sound

discretion of the trial court, and we will reverse the trial court only for an abuse

of discretion. Rowlett v. Vanderburgh Cnty. Office of Family and Children, 841

N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. We may find an abuse of

discretion in the denial of a motion for a continuance when the moving party

has shown good cause for granting the motion. Id. However, we will not find

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 14 of 25
 an abuse of discretion when the moving party has not demonstrated that he or

she was prejudiced by the denial. Id.

[29] In support of her arguments, Mother cites to Rowlett where we reversed the trial

court’s denial of a motion to continue a termination hearing. Like Mother, the

father in that case was incarcerated and was due to be released shortly after his

scheduled termination hearing—within six weeks. Id. He requested the

continuance because he wanted an opportunity to become established in the

community and to participate in services directed at reunifying him with his

children. Id. We reversed the trial court’s denial of this motion on the basis

that he had not had an opportunity to demonstrate his fitness as a parent due to

his incarceration. Id. He had been arrested two months after his children had

been removed from his care. Id. at 618. In addition, we noted that the

prejudice to the father—that his parental rights were terminated—was

“particularly harsh” because he had participated in numerous services and

programs offered by the jail while he had been incarcerated. Id. at 619. We

also noted that a continuation of the termination hearing would not have had

much impact on the children because they were already living with their

potential adoptive placement. Id.

[30] While there are some similarities between Rowlett and the instant case, we do

not find it entirely on point. Unlike in Rowlett, Mother had six months prior to

her incarceration to engage in services and demonstrate her fitness as a parent.

Also unlike the father in Rowlett, Mother did not engage in numerous services

and programs while she was in prison. She completed only one course

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 15 of 25
 addressing the services the trial court had ordered—her parenting class—and

she was terminated from multiple other programs.

[31] Instead, we conclude that Mother failed to demonstrate that there was good

cause to continue her termination hearing. A trial court determines whether a

party has presented good cause for a continuance based on “the circumstances

present” in the case, “particularly in the reasons presented to the trial judge at

the time the request was denied.” F.M. v. N.B., 979 N.E.2d 1036, 1040 (Ind. Ct.

App. 2012) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964), reh’g denied).

Here, Mother did not demonstrate that allowing her more time to complete

services was a justifiable reason for delaying the hearing. She had already had

the opportunity to participate in services during the six months prior to her

incarceration, and she had failed to do so. Additionally, she had failed to

complete programs she had been offered while incarcerated. Further, Mother’s

termination hearing had already been delayed, and had the potential to be

delayed even further than intended, if the trial court had granted her motion.

Specifically, on the date of the termination hearing, several months had already

passed since DCS had filed its petition to terminate Mother’s parental rights,

and the trial court had already granted Mother three continuances. Also, in

addition to the twenty-three days remaining of Mother’s incarceration, she

requested two months to complete services, and DCS testified that the delay

could be exacerbated even further due to CASA’s limited availability during the

summer. In light of these factors, we conclude that Mother did not present

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 16 of 25
 good cause to continue the termination hearing, and, therefore, the trial court

did not abuse its discretion in denying her motion.

2. Termination

[32] Next, Mother argues that the trial court erred in terminating her parental rights.

Specifically, she argues that DCS did not present clear and convincing evidence

that the reasons that led to K.R.’s removal and continued placement outside of

her care would not be remedied.6

[33] To terminate a parent-child relationship, a petition must allege that one of the

following is true:

(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied

(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.

IND. CODE § 31-35-2-4(b)(2). The State must prove these allegations by clear

and convincing evidence. In re Z.C., 13 N.E.3d 464, 469 (Ind. Ct. App. 2014),

6
Mother also seems to challenge the trial court’s conclusion that termination of her parental rights was in
K.R.’s best interests. However, she does not provide any argument in support of that claim, and,
accordingly, we conclude that she has waived it. See Matter of A.N.J., 690 N.E.2d 716, 720 (Ind. Ct. App.
1997) (stating that an appellant’s failure to provide us with cogent argument and authority to support a claim
waives that argument on appeal).

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 17 of 25
 trans. denied. If the court finds that the allegations in the petition are true, the

court must terminate the parent-child relationship. I.C. § 31-35-2-8.

[34] When reviewing findings of fact and conclusions thereon in a case involving a

termination of parental rights, we apply a two-tiered standard of review. In re

M.W., 943 N.E.2d 848, 853 (Ind. Ct. App. 2011), trans. denied. First, we

determine whether the evidence supports the findings, and, second, we

determine whether the findings support the judgment. Id. We will set aside the

trial court’s judgment only if it is clearly erroneous. Id. A trial court’s judgment

is clearly erroneous if the findings do not support its conclusions or the

conclusions do not support the judgment. Id. Further, we will “consider only

the evidence and reasonable inferences therefrom that support the [court’s]

judgment” terminating parental rights. Id. We will not “reweigh the evidence

or reassess the credibility of the witnesses.” Id.

[35] When determining whether the conditions that resulted in a child’s removal

from a parent’s care will not be remedied, the trial court must judge a parent’s

fitness to care for his or her child at the time of the termination hearing, taking

into consideration evidence of changed conditions. Z.C., 13 N.E.3d at 469.

The court must evaluate a parent’s habitual patterns of conduct to determine

whether there is a substantial probability of future neglect or deprivation. Id. In

making this determination, the court balances any parental improvements

against parental habitual patterns of conduct. In re E.M., 4 N.E.3d 636, 643

(Ind. 2014). The trial court has discretion to weigh a parent’s prior history

more heavily than efforts made only shortly before termination. Id. Requiring

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 18 of 25
 trial courts to give due regard to changed conditions does not preclude them

from finding that a parent’s past behavior is the best predictor of future

behavior. Id. Further, DCS is not required to rule out all possibilities of

change; rather, it need establish “only that there is a reasonable probability that

the parent’s behavior will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind.

Ct. App. 2007).

[36] In the past, we have found that trial courts have properly considered a parent’s

prior criminal history, drug and alcohol abuse, history of neglect, failure to

provide support, and lack of adequate housing and employment when

determining whether a parent’s conditions will be remedied. In re Z.C., 13

N.E.3d at 469. A trial court may also consider the services offered to the parent

by DCS and the parent’s response to those services. Id. The court does not

need to wait until a child is irreversibly influenced by a deficient lifestyle such

that his or her physical, mental, and social growth are permanently impaired

before terminating a parent-child relationship. Id.

[37] Here, Mother argues that in one of the trial court’s conclusions, as well as six of

the trial court’s findings supporting that conclusion, it inappropriately shifted

the burden of proof to her instead of DCS. The trial court’s conclusion Mother

challenges was that:

Mother’s testimony did not reflect a reasonable plan to provide
for [K.R.] upon her release from prison and into the future. Her
plan was to get financial assistance from her grandmother, with
no collaborating [sic] evidence that the grandmother could
provide the financial assistance for housing. Although Mother

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 19 of 25
 was optimistic about applying for the state highway employment
she did not articulate any specific steps to achieve that goal.

(App. 28).

[38] We disagree with Mother’s argument that the trial court inappropriately shifted

the burden to Mother, but we need not address whether the conclusion was

erroneous on that ground, because we have held that “even an erroneous

finding is not fatal to a trial court’s judgment if the remaining valid findings and

conclusions support the judgment, rendering the erroneous finding superfluous

and harmless as a matter of law.” Curley v. Lake Cnty. Bd. of Elections and

Registration, 896 N.E.2d 24, 32 (Ind. Ct. App. 2008) (quoting M.K. Plastics Corp.

v. Rossi, 838 N.E.2d 1068, 1074 (Ind. Ct. App. 2005)), trans. denied. Here,

several of the trial court’s remaining, uncontested conclusions independently

support its judgment that the conditions that led to K.R.’s removal and

continued placement outside of Mother’s care would not be remedied.

[39] K.R. was removed from Mother’s care and adjudicated a CHINS because of

Mother’s: (1) neglect in leaving K.R. unattended in a van on a hot day; (2) use

of illegal drugs; and (3) lack of participation in services. In its order terminating

Mother’s parental rights, the trial court listed the following conclusions in

support of its determination that the circumstances that led to K.R.’s removal

and continued placement outside of Mother’s care would not be remedied:

56. Mother has not resolved the reason for [K.R.’s] removal
from her care. [K.R.] was removed because Mother left her
unattended and strapped in her car seat in a locked and hot van

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 20 of 25
 when she was three years old and Mother left the home. [K.R.’s]
very life was endangered. Although Mother begrudgingly
admitted at the parental rights hearing that she should have
checked to be sure that [K.R.] was removed from the van,
Mother did not check and she expressed no plan to check on
[K.R.] before she left the home. The court concludes that
Mother does not sincerely take responsibility for the initial
neglect and endangerment of [K.R.], and Mother continues to
blame others. Mother’s statements do not reflect a true
understanding of [K.R.’s] need for supervision and the risk of
extreme harm due to her neglect of the most basic caregiving—
supervision.

57. Mother’s initial neglect and Mother’s sporadic visitation with
[K.R.] show an inability to prioritize the child’s needs over her
own. Mother’s commitment of additional criminal activity after
[K.R.’s] removal and non-compliance with criminal court
appearance orders, show a basic disrespect of the property of
others, laws, and the legal process. Mother’s refusal to utilize
drug treatment, counseling and case management services, and
Mother’s testimony that this court interprets as her denial that
she needs those services, reflect a lack of insight that her use of
drugs, criminal lifestyle, lack of sound judgment in parenting
supervision, and lack of stable housing and employment
negatively impact her ability to provide [safety] for [K.R.].

58. Without counseling it is unlikely that Mother can appreciate
the needs of [K.R.] and prioritize those needs over her own.
Mother does not express a sincere understanding of this. The
court does not find any reasonable likelihood that Mother will
pursue counseling.

59. Of great concern is Mother’s total lack of respect or
willingness to cooperate to any reasonable degree with service
providers and case managers so that she could appreciate the risk
she caused to [K.R.] by her initial act of neglect, and Mother’s
Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 21 of 25
 ongoing inability to get employment or stable housing, her
refusal to utilize case management services to assist, and her
refusal to maintain regular contact with [K.R.] before she went to
prison.

60. Mother could not recall at the Parental Rights Hearing what
services were ordered for her. Case Manager Kevin Bezy was
concerned that Mother did not understand that she had a sincere
parenting problem that had to be addressed. Case Manager
Mindy Wright listed Mother’s barrier to reunification as her
unwillingness to utilize treatment services. Mother did not
articulate in her testimony any services that she thought she
needed, although she clearly stated her willingness to cooperate
with DCS and to follow conditions of probation when she is
released from prison. Without an understanding of how she
places her child at risk, Mother is not likely to undertake the
services necessary to help her provide safe parenting, stable
housing and income, and exercise sound parent judgment.

61. Mother had an opportunity from [K.R.’s] removal in June
2013 until her incarceration in the Monroe County Jail in
December 2013 to utilize extensive services and opportunities to
demonstrate a commitment to her child through visitation. The
service providers tried to track her down and offered extensive
services [at] no cost to Mother for drug treatment, counseling,
and case management to obtain housing and employment.
Mother completely rejected the services and still does not make a
sincere statement that she needs services. Mother’s incarceration
in the Monroe County Jail in December 2013 was of her own
cause. Her ongoing criminal behavior and violations of warrants
and other orders of the criminal court resulted in her
incarceration until sentencing to prison. She voluntarily
sacrificed her opportunity to use rehabilitation services.

62. Mother also had opportunities for rehabilitation in prison
from April 2014 to her discharge in April 2015. She had a
Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 22 of 25
 significant opportunity in prison to learn and demonstrate
character traits and behaviors indicative of an ability to provide a
safe and stable lifestyle for [K.R.]. Madison offered Mother the
Triple R program to address criminal behavior and thinking
through education, life skills and community services,
Responsible Mother Program, Work Opportunities, access to
special programming like Gone Fishing, and standard re-entry
and exit programming for all inmates. The quality of Mother’s
participation in these programs, her daily conduct in the prison
system, and her work assignments could have demonstrated a
capacity for rehabilitation and a likelihood that the reasons for
removal of [K.R.] could be remedied.

63. Mother is applauded for her participation in the Responsible
Mother Program and some other good programming and positive
road crew experiences. However[,] in the overall picture, the
court does not find that Mother demonstrated a willingness or
ability to make changes essential to safe parenting in her
particular case despite [being] given the opportunity to do so at
Madison. Mother was removed from the literacy program for
cheating and from the Triple R program, Mother was canceled
from some work assignments for refusing to appear for work,
[and] Mother committed institutional behavior violations
through March 2015. The Offender Reviewed form signed by
case manager Kuppler and Mother in April 2015 shows “none”
for affirmative indicators. Mother’s negative behaviors with staff
and inmates stated in the Offender Reviewed form for her release
from prison does not reflect an attitude of responsibility and
accountability that would be significant to maintaining
employment, healthy adult and parent-child relationships, respect
for rules reflecting a choice to avoid future criminal behavior, and
the ability to place the needs of [K.R.] first.

64. Although Mother may not have been offered counseling in
the prison, she testified that she did not need counseling.
Therefore[,] even if provided counseling, it was not likely to be

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 23 of 25
 successful. Mother did not testify whether drug treatment was
available in the prison, but her testimony did not reflect that she
thought she needed treatment for her long history of marijuana
use.

* * *

66. The court concludes by clear and convincing evidence that
there is a reasonable probability that the conditions that resulted
in [K.R.’s] removal from Mother, and ongoing placement outside
of Mother’s care, will not be remedied.

67. Although Mother most likely will have been released from
prison by the time this opinion is issued, based upon the evidence
above of her non-compliance with services and lack of
recognition of her parenting problems, her release from prison is
insufficient to create a reasonable likelihood that Mother will
resolve the reasons for [K.R.’s] removal from her care.

(App. 25-28).

[40] In these conclusions, the trial court listed several grounds for its judgment,

including Mother’s: (1) refusal to take responsibility for endangering K.R. by

leaving her unattended in a hot van; (2) lack of understanding that she needed

to supervise K.R.; (3) poor visitation record; (4) lack of respect for the law, as

demonstrated by her criminal activities during the CHINS proceedings; (5)

refusal to utilize services or recognize that she needed those services; (6) poor

performance in multiple programs and opportunities that she was offered while

incarcerated; (7) misconduct in prison; and (8) poor attitude. The conclusion

that Mother challenges—that she did not have a reasonable plan for K.R. for

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 24 of 25
her release from prison—was just one minor conclusion out of many that the

trial court listed. Further, it is clear that Mother’s lack of participation in

services, as well as her refusal to acknowledge that she needed services, were

the primary reasons that the trial court determined that she would not remedy

the conditions that led to K.R.’s removal, as the trial court discussed those two

factors repeatedly. In light of this overwhelming support for the trial court’s

judgment, we conclude that, even if the conclusion Mother challenges was

erroneous, the trial court’s judgment was not.7

Affirmed.

Baker, J., and Bradford, J., concur.

7
The rest of Mother’s arguments amount to a request that we reweigh the evidence before the trial court,
which we will not do. See In re M.W., 943 N.E.2d at 853.

Court of Appeals of Indiana | Memorandum Decision 53A05-1507-JT-858 | December 31, 2015 Page 25 of 25