In the Matter of the Involuntary Term. of the Parent-Child Relationship of A.B. (Minor Child): G.B. (Mother) and C.B. (Father) v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION FILED
Mar 28 2016, 8:38 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool Gregory F. Zoeller
Vanderpool Law Firm Attorney General
Warsaw, Indiana
Robert J. Henke
David E. Corey
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary March 28, 2016
Termination of the Parent-Child Court of Appeals Case No.
Relationship of A.B. (Minor 85A02-1506-JT-794
Child): Appeal from the Wabash Circuit
G.B. (Mother) and C.B. (Father) Court
The Honorable Robert R.
Appellants-Respondents,
McCallen, III, Judge
v. Trial Court Cause No.
85C01-1410-JT-13
Indiana Department of Child
Services,
Appellee-Petitioner

Vaidik, Chief Judge.

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 Case Summary
[1] G.B. (“Mother”) and C.B. (“Father”) appeal the termination of their parent-

child relationship with A.B. In addition to arguing that the evidence is

insufficient to prove there is a reasonable probability that the circumstances

leading to A.B.’s removal will not be remedied and that termination is in A.B.’s

best interests, Mother and Father also contend that the trial court’s findings are

not supported by clear and convincing evidence because the court relied upon

judicially noticed records of other cases, and those records were not entered

into evidence. Indiana Rule of Evidence 201 permits courts to take judicial

notice of records of a court of this state. There is no requirement in Rule 201

that such records be entered into the record of the present case. However, we

have previously addressed the need to include judicially noticed records from

other cases in the record submitted for appeal where those records are necessary

for appellate review. In this case, the Indiana Department of Child Services

(“DCS”) included relevant portions of the “other” records in its appendix. That

is sufficient to permit appellate review. Concluding that DCS has proven the

statutory requirements by clear and convincing evidence and that the trial

court’s judgment terminating parental rights to A.B. is not clearly erroneous, we

affirm.

Facts and Procedural History
[2] A.B. was born November 1, 2012, to Mother and Father. In January 2013,

Father overdosed on heroin and Mother drove him to the hospital. At that

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 time, both Father and Mother admitted using illegal drugs, and DCS removed

A.B., then two months old, from them. A.B. was placed in foster care for

nineteen days before ultimately being placed with Father’s aunt and uncle.

[3] DCS filed a petition alleging A.B. was a child in need of services (“CHINS”).

Mother agreed and the court adjudicated A.B. a CHINS on February 12, 2013.

The court entered default judgment against Father the next day because he

failed to appear for any of the hearings. According to the terms of the

dispositional order entered in March 2013, Mother and Father were required to,

among other things, participate in substance-abuse treatment, submit to drug

screening, and participate in home-based services. Father was also ordered to

participate in the Father Engagement Program.

[4] From March 2013 until March 2015, neither Mother nor Father complied with

the dispositional order, with one exception: Mother attended the majority of her

supervised visitations. Otherwise, Mother estimated that her longest period of

sobriety lasted just three weeks. In October 2013, Mother requested

participation in Family Drug Treatment Court, and a modified dispositional

order was entered to transfer her case. The Family Drug Treatment Court

terminated Mother’s participation after only eight months because she violated

the terms of her placement by testing positive for controlled substances at least

fifteen times, including multiple positive tests for methamphetamine and at least

one positive test for heroin, and failed to appear in court on multiple occasions.

Mother also estimated that she failed to report for approximately twenty drug

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 screens. Mother’s addictions therapist testified that Mother began treatment in

late July 2014, continued for approximately two weeks, and then quit.

[5] Father was similarly noncompliant with the dispositional order. He did not

make his first appearance in the underlying CHINS case until the July 19, 2013

periodic-review hearing—seven months after the initial hearing. The court

noted in its order from the July 2013 hearing that Father had not visited A.B.

Father was on probation for a felony conviction until August 2013, when his

probation was revoked for failing drug screening and failing to report to his

probation officer. Father met with his social worker twice for the Father

Engagement Program in March 2014. He missed the third appointment, and

the social worker was unable to reach him after that. Father’s file was closed in

April 2014 for lack of participation. He continued failing drug screens, and his

probation was revoked again in June 2014. He has been incarcerated since.

[6] Finally, neither parent participated in home-based services to any meaningful

extent in the two years after A.B. was adjudicated a CHINS. The family-

services provider began working with Mother starting in January 2013 and

Father starting in October 2013. Services were stopped in April 2014 because

of inconsistent attendance.

[7] DCS filed a petition to terminate Mother’s and Father’s parental rights in

October 2014. The fact-finding hearing was originally scheduled for December,

but it was continued multiple times. While the fact-finding hearing was

pending, Mother discovered that she was pregnant. She stopped using illegal

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 drugs—her last positive screen for illegal drugs was January 22, 2015—and

began participating in the ordered services in March 2015. Father was

convicted of one Class D felony in April and another Class D felony in May

2015, resulting in his continued incarceration. Although unable to participate

in services, Father has remained drug-free while incarcerated.

[8] The fact-finding hearing occurred in May 2015. At the outset of the hearing,

the court announced that it was taking judicial notice of several related “cases,”

including the original CHINS case, the Family Drug Treatment Court case, and

criminal cases against Father. Tr. p. 5-6. No objections were raised, and there

was no request for a hearing on the matter.

[9] The Court Appointed Special Advocate (CASA) recommended termination of

parental rights. She based her recommendation on a full review of the file, six

meetings with A.B. in her current placement, the CASA’s educational

background and experience, and the reports of other service providers. She did

not meet with either Mother or Father after being assigned this case—the

original CASA died before the petition to terminate parental rights was filed.

She testified that she did not meet with Father because he was in jail from the

time she was appointed until the hearing, and she attempted to contact Mother

four times, but was unable to reach her. The Family Case Manager (FCM) also

testified that it was in A.B.’s best interests to terminate the parent-child

relationship.

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[10] In June 2015 the trial court entered an order with findings terminating Mother’s

and Father’s parental rights. Among the findings:

[Father] never really engaged for any length of time in services.
[He] was in and out of jail and has been for the better part of
[A.B.]’s life. When he was not incarcerated, he participated
minimally in services. [Mother’s] participation in services when
she did so was limited, at least until very recently.

*****
From the time of [A.B.’s] removal until early January, 2015,
neither [Mother] or [Father] had participated in services in any
meaningful way. In January 2015, some four months after the
petition to terminate parental rights was filed, [Mother] began
engaging in random drug screens. By then, [Mother] was aware
she was pregnant. . . . On or about March 9, 2015, [Mother]
began substance abuse counseling, individual counseling, moral
recognition therapy and was passing all of her drug screens.
However, though her participation has been more consistent
since March 9, 2015, this is not [Mother]’s first time at engaging
in services and all prior efforts fell far short.

*****
[Father’s aunt] testified and the Court believes that she fully
hoped to be a temporary caregiver for [A.B.] while [Mother] and
[Father] got their act together. However, she is aware of
[Mother’s] actions over the last two years or so and recognizes
the significant likelihood that [Mother’s] current engagement is
temporary and she will not ever be able to parent [A.B.].
[Father’s aunt] wants what is best for [A.B.] despite the awkward
position that puts her in.

*****

The DCS made significant efforts to facilitate reunification.
Services were offered, time and again. Despite those efforts

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 neither parent benefitted to any appreciable degree, [Mother’s]
recent engagement in services notwithstanding. Her efforts were
too little, too late. Reunification was the goal, and it was
pursued, to no avail.

Appellants’ App. 14-19.

[11] Mother and Father appeal the termination of their parental rights.

Discussion and Decision
[12] The Fourteenth Amendment to the United States Constitution protects the right

of parents to establish a home and raise their children. In re K.T.K., 989 N.E.2d

1225, 1230 (Ind. 2013). However, a parent’s rights may be terminated if the

parent is unable or unwilling to meet his or her parental responsibilities by

failing to provide for the child’s immediate and long-term needs. Id. The

purpose of terminating parental rights is not to punish parents, but to protect

their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.

denied.

[13] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. Bester v. Lake Cnty. Office of Family &

Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, we consider only the

evidence and the reasonable inferences that are most favorable to the judgment

of the trial court. Id. When the trial court has entered findings and

conclusions, we apply a two-tiered standard of review. K.E. v. Ind. Dep’t of Child

Servs., 39 N.E.3d 641, 646 (Ind. 2015). First, we determine whether the

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 evidence supports the findings, and second, whether the findings support the

judgment. Id. The judgment will be set aside only if it is clearly erroneous. Id.

A judgment is clearly erroneous if the findings do not support the trial court’s

conclusions or the conclusions do not support the judgment. In re R.J., 829

N.E.2d 1032, 1035 (Ind. Ct. App. 2005).

[14] A petition to terminate parental rights must allege, among other things:

(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[.]

Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.

[15] Mother and Father raise five arguments, which we consolidate and restate as:

(1) the record does not support the trial court’s findings because judicially

noticed records from other cases that support the findings were not entered into

evidence; (2) there is insufficient evidence to support the trial court’s

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 conclusions that the conditions that resulted in A.B.’s removal would not be

remedied and that continuation of the parent-child relationship poses a threat to

A.B.’s well-being; and (3) it is not in the best interests of A.B. to terminate the

parent-child relationship.

I. Judicial Notice
[16] At the outset of the termination hearing, the trial court announced it was taking

judicial notice of several “cases” and then listed cause numbers that included

the related Family Drug Treatment Court cause number, the underlying

CHINS proceeding, and five of Father’s criminal cases. Tr. p. 5. DCS also

requested judicial notice of another criminal case related to Father in a different

county, submitting “paperwork from that case[,]” and the court took judicial

notice of it as well. Id. at 5-6. However, no records from the judicially noticed

cases were entered into the record of this case. Therefore, Mother and Father

argue that the record here does not support the trial court’s findings to the

extent that those findings are based on judicial notice of records from the other

cases.1

1
Mother and Father question “whether [Indiana Rule of Evidence 201] allows the Court to note only that
the records exist; or, to note the contents of those records…” Appellants’ Br. p. 14. Because Mother and
Father do not state an objection to a specific document or fact that the trial court noticed, we are unable to
fully address this question. However, we have previously held that a trial court may take judicial notice of
certain contents within the records of related proceedings. See In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App.
2012) (stating that judicial notice of documents filed in a CHINS action was proper in the subsequent
termination of parental rights case); see also In re Paternity of P.R., 940 N.E.2d 346, 350 (Ind. Ct. App. 2010)
(stating that it was not error for a trial court to take judicial notice of the substance of a protective order even
though the protective order file was not entered into evidence).

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[17] Mother and Father waived this argument. Issues not raised at the trial court are

waived on appeal. In re Involuntary Termination of Parent-Child Relationship of

B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied. Where a party

objects to a court taking judicial notice, Indiana Rule of Evidence 201

specifically provides an opportunity for a hearing—even after the notice has

been taken. Ind. Evidence Rule 201(e) (“On timely request, a party is entitled

to be heard on the propriety of taking judicial notice and the nature of the fact

to be noticed. If the court takes judicial notice before notifying a party, the

party, on request, is still entitled to be heard.”); see also In re Paternity of P.R., 940

N.E.2d 346, 350 (Ind. Ct. App. 2010). However, the timely request must be

made to the trial court; “appealing the trial court’s action does not constitute a

timely request for an opportunity to be heard pursuant to Rule 201(e).” In re

Paternity of P.R., 940 N.E.2d at 350.

[18] Neither Mother nor Father objected to the trial court taking judicial notice of

the “cases” or requested that the trial court incorporate the material in the

record. In fact, later in the proceeding, Mother’s attorney expressly

acknowledged that the trial court had taken judicial notice of one of Father’s

criminal cases and stipulated that “the information contained therein is

accurate.” Tr. p. 47. While it is not clear what the trial court meant when it

said it was taking judicial notice of “cases,” and it is possible that Mother and

Father did not realize the scope of the judicial notice being taken at the time,

that scope was certainly clear when the final order was issued. Rule 201

permitted them to request a hearing at that time to dispute what the trial court

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 noticed or to request that the trial court include certain documents in the record

of this case. No such request was made to the trial court. By failing to raise the

question with the trial court, Mother and Father have waived their argument.

[19] Waiver notwithstanding, Mother’s and Father’s argument that the trial court’s

findings are unsupported because the record is incomplete still fails. They

contend that In re D.K. “essentially requires” that “where a court takes judicial

notice, some effort must be made to include those records in the record of the

current proceeding.” Appellants’ Br. p. 15. The issue in D.K. was that neither

party nor the trial court included records from the judicially noticed underlying

CHINS case and the Appellee’s brief relied on facts that were, therefore,

missing from the record on appeal. This Court concluded that “if a party on

appeal wishes to rely on parts of the ‘other’ record or records in making an

argument before this court, it should include those parts in an appendix

submitted to this court under Indiana Appellate Rule 50.” In re D.K., 968

N.E.2d at 797. That is precisely what DCS did in this case; DCS filed an

Appellee’s Appendix that contained the relevant portions from the judicially

noticed cases. That is sufficient to allow appellate review and meets the

standard expressed in D.K.

II. Reasonable Probability That the Conditions Resulting
in Removal Will Not Be Remedied
[20] Mother and Father contend that there was insufficient evidence to support the

trial court’s conclusions that they were unlikely to remedy the conditions that

resulted in the removal of A.B., and that continuation of the parent-child
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 relationship poses a threat to A.B.’s well-being. Indiana Code section 31-35-2-

4(b)(2)(B) is written in the disjunctive. Therefore, DCS is required to establish

by clear and convincing evidence only one of the three requirements of

subsection (B). In this case, we conclude that there is sufficient evidence to

support the trial court’s finding that there is a reasonable probability that the

conditions that resulted in A.B.’s removal will not be remedied. Therefore, we

need not address the finding that continuation of the parent-child relationship

poses a threat to A.B.’s well-being.

[21] In determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied, we engage in a two-step

analysis. In re E.M., 4 N.E.3d 636, 642-643 (Ind. 2014). We first identify the

conditions that led to removal or placement outside the home and then

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. The second step requires trial courts to judge a parent’s

fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions, and balancing any recent improvements

against habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. In so doing, trial courts have

discretion to weigh a parent’s prior history more heavily than efforts made only

shortly before termination, and courts may find that a parent’s past behavior is

the best predictor of his or her future behavior. Id. Finally, a parent’s testimony

about future plans is not evidence upon which a trial court can base its

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 termination decision. In re B.D.J., 728 N.E.2d 195, 202 n.1 (Ind. Ct. App.

2000).

[22] Here, A.B. was removed from Mother and Father because of their drug use.

The dispositional order required both parents to submit to drug screening,

participate in substance-abuse treatment, and participate in home-based

services. But from March 2013 until March 2015, neither Mother nor Father

complied with that order. Mother testified that her longest period of sobriety

was three weeks during the two years from A.B.’s removal in January 2013

until she discovered that she was two-months pregnant in January 2015.

According to the order terminating Mother’s participation in Family Drug

Treatment Court, she tested positive for illegal substances, including

methamphetamine and heroin, fifteen times and failed to report for an

additional twenty drug screens. Father’s probation was revoked twice for illegal

drug use and he has spent the majority of the last two years incarcerated. He

has not participated in either substance-abuse treatment or the Father

Engagement Program to any meaningful extent.

[23] Both parents point to their recent sobriety and intention to engage in services

going forward as evidence that the condition leading to A.B.’s removal will be

remedied. In addition, Mother raises the fact that she substantially complied

with supervised visitation at all times, and with her other services during her

brief periods of sobriety before January 2015 as well as after March 2015.

Father argues that he has been sober during the last year, while incarcerated,

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 and that services were unavailable to him during his incarceration, but he

intends to engage with them when he is released.2

[24] These arguments invite us to reweigh the evidence—to put more emphasis on

the recent improvement than the prior two years of non-compliance and

substance abuse. We will not reweigh evidence on appeal. Bester, 839 N.E.2d

at 147. Mother’s and Father’s two-year history of non-compliance with the

dispositional order and continued substance abuse is supported by the record.

And the findings of non-compliance and continued substance abuse support the

trial court’s conclusion that there is a reasonable probability that the conditions

that resulted in A.B.’s removal will not be remedied.

III. Best Interests of the Child
[25] In determining what is in a child’s best interests, the trial court must look to the

totality of the evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App.

2013), trans. denied. In so doing, the trial court must subordinate the interests of

2
Father asserts that he is in the same position as the father in K.E. v. Indiana Department of Child Services, 39
N.E.3d 641 (Ind. 2015). We find the facts of this case distinguishable from the facts in K.E. The father in
K.E. saw his children every two weeks and called them daily to talk and to tell them goodnight. Id. at 649.
Father in this case did not even see A.B. for the first seven months after her removal—and then his probation
was revoked due to his continued drug use. In K.E., the father voluntarily completed twelve programs to
improve his life and parenting skills while he was incarcerated. Id. Here, the trial court saw no evidence of
meaningful engagement in any programs or services, including during the periods when Father was not
incarcerated. Moreover, during periods between incarceration, Father testified that his paycheck typically
lasted one day due to the amount he spent on illegal drugs. Tr. p. 64. The dispositional order in this case
clearly required Father to stop using illegal drugs in order to regain custody of A.B., and he agrees that he
spent his money on “pills, heroin, amphetamines, whatever [he] could get[.]” Id. Incarceration is only one
factor in determining whether the condition that led to the removal of a child will be remedied. Id. at 648. It
is the other factors, like the relationship with the child and the effort made to participate in programs that
develop parenting skills, which distinguish K.E. from this case.

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 the parent to those of the child. Id. The court need not wait until a child is

irreversibly harmed before terminating the parent-child relationship. Id. We

have previously held that the recommendation by both the FCM and CASA to

terminate parental rights, in addition to evidence that the conditions resulting in

removal will not be remedied, is sufficient to show by clear and convincing

evidence that termination is in the child’s best interests. Id. at 1158-59.

[26] Here, both the CASA and the FCM recommended termination of parental

rights, and there is evidence that the conditions resulting in removal will not be

remedied. However, Mother and Father contend that Indiana Code section 31-

35-2-4.5(d)(1) “provides a mechanism that allows parents to request that a

termination proceeding be dismissed if certain circumstances apply.”

Appellants’ Br. p. 20. The statute provides in pertinent part:

A person described in section 4(a) of this chapter may file a
motion to dismiss the petition to terminate the parent-child
relationship if any of the following circumstances apply:

(1) That the current case plan prepared by or under the
supervision of the department or the probation department
under IC 31-34-15, IC 31-37-19-1.5, or IC 31-37-22-4.5 has
documented a compelling reason, based on facts and
circumstances stated in the petition or motion, for
concluding that filing, or proceeding to a final
determination of, a petition to terminate the parent-child
relationship is not in the best interests of the child. A
compelling reason may include the fact that the child is
being cared for by a custodian who is a relative (as defined
in IC 31-9-2-107(c)).

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 I.C. § 31-35-2-4.5(d)(1). Mother and Father further argue that the language of

the statute indicates that A.B.’s placement with Father’s aunt and uncle is a

“compelling reason” to conclude that termination of their parental rights is not

in A.B.’s best interests and that the “effect on A.B. of giving the parents more

time will be minimal.” Appellants’ Br. p. 21.

[27] First, to clarify, Section 31-35-2-4.5(d)(1) provides a mechanism for a “person

described in section 4(a) of this chapter” to file a motion to dismiss the petition

to terminate the parent-child relationship. Indiana Code section 31-35-2-4(a)

describes three people: “(1) The attorney for the department. (2) The child’s

court appointed special advocate. (3) The child’s guardian ad litem.” It does

not include parents. Section 31-35-2-4.5(d)(1) does not provide a special

statutory mechanism for parents to request dismissal of a termination

proceeding.

[28] Additionally, Section 31-35-2-4.5(d)(1) permits, but does not require, the

dismissal of a petition to terminate parental rights when the child is in the care

of a relative. See, e.g., In re G.H., 906 N.E.2d 248, 252 (Ind. Ct. App. 2009);

James v. Pike Cnty., 759 N.E.2d 1140, 1144 (Ind. Ct. App. 2001); M.H.C. v. Hill,

750 N.E.2d 872, 878 (Ind. Ct. App. 2001). Placement with a relative may

provide a “compelling reason” for DCS to request dismissal of its petition for

termination of parental rights under the terms of the statute. But such

placement does not compel the trial court to find that it is in the best interests of

the child to retain the parent-child relationship.

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[29] The balance of Mother and Father’s argument is, again, a request that we

reweigh the evidence, which we will not do. Bester, 839 N.E.2d at 147. The

trial court’s determination that termination of the parent-child relationship is in

A.B.’s best interests is supported by the testimony of the CASA and the FCM as

well as the two-year history of noncompliance with the dispositional order.

[30] Affirmed.

Bailey, J., and Crone, J., concur.

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