In re the Termination of the Parent-Child Relationship of: O.G., II (Minor Child) and K.T. (Mother) & O.G. (Father) v. The Indiana Department of Child Services

FILED
Dec 21 2016, 7:58 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT – ATTORNEYS FOR APPELLEE
MOTHER Gregory F. Zoeller
Steven J. Halbert Attorney General of Indiana
Carmel, Indiana Robert J. Henke
ATTORNEY FOR APPELLANT – David E. Corey
FATHER Deputy Attorneys General
Indianapolis, Indiana
Patricia Caress McMath
Marion County Public Defender Agency
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Termination of the December 21, 2016
Parent-Child Relationship of: Court of Appeals Case No.
49A02-1605-JT-1072
O.G., II (Minor Child)
and Appeal from the Marion Superior
K.T. (Mother) & O.G. (Father), Court
The Honorable Marilyn A.
Appellants-Respondents,
Moores, Judge
v. The Honorable Larry E. Bradley,
Magistrate
The Indiana Department of Trial Court Cause No.
Child Services, 49D09-1505-JT-325
Appellee-Petitioner

Baker, Judge.

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[1] O.G. (Father) and K.T. (Mother) appeal the juvenile court’s order terminating

their parent-child relationship with O.G., II (Child). Father argues that the

juvenile court erred by admitting certain evidence and both parents argue that

there is insufficient evidence supporting the termination order. We find that the

juvenile court erroneously admitted certain hearsay evidence. We also find that

the evidence does not support the order terminating the parent-child

relationship with either parent and reverse and remand for further proceedings.

Facts
[2] On May 28, 2011, the Department of Child Services (DCS) removed Child after

receiving a report that Child had been left with a family friend who could not

contact Mother. At that time, Father indicated to DCS that both parents would

test positive for marijuana. On June 1, 2011, DCS filed a petition alleging that

Child was a child in need of services (CHINS). On June 21, 2011, the juvenile

court adjudicated Child to be a CHINS after Mother admitted to the following:

“[Mother] and [Father] have a history of domestic violence in
their relationship, and there was a recent altercation where
[Father] punched [Mother] in the face and choked her, causing
her to lose consciousness. In addition, [Mother] admitted to and
tested positive for recent marijuana use, and [Father] has pending
charges for possession of cocaine.”

DCS Ex. 12. The juvenile court later entered a dispositional decree ordering

the parents to, among other things, refrain from use of illegal drugs or alcohol;

complete substance abuse, parenting, and domestic violence assessments and

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 comply with all recommendations stemming from those assessments; submit to

random drug screens; and refrain from acts of domestic violence.

[3] Mother and Father have a significant history of domestic violence. Mother’s

first domestic violence assessment led to a recommendation that she complete a

26-week domestic violence class; she failed to complete the classes. She then

completed a second assessment, recanting the statements she made regarding

Father in the first assessment. The assessor recommended a 26-week class, and

this time, Mother completed the classes. In October 2011, Father was charged

with felony battery and domestic battery, but Mother eventually recanted and

the charges were dismissed.

[4] In August 2012, Child was returned to Mother’s care and custody on a trial

basis. DCS removed Child after it learned that Father had been in the home,

apparently mistakenly believing that there was a no-contact order in place. The

juvenile court, however, ordered Child returned to Mother’s care because no

such order had been entered. In February 2013, the juvenile court entered an

order preventing Father from having contact with Child. Child remained in

Mother’s care and custody until May 31, 2013. Child was once again removed

after Father went to Mother’s home, kicked down her door, and attacked her.

Mother called the police, as the safety plan in place required her to do, and

Father was arrested.

[5] Mother testified that her romantic relationship with Father ended in late 2012.

The only evidence in the record tending to dispute that testimony was the

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testimony of the police officer who responded when Father broke down

Mother’s door. The officer testified that Mother told him that she and Father

had been together for three years. The following discussion occurred on cross-

examination:

Attorney: Is it possible that she told you that they had been
together for three years and not that they [were]
currently together?

Officer: It could be.

Attorney: Is it fair to say that sitting here today, you can’t
specifically recall that [Mother] told you that she
was in a current relationship with [Father]?

Officer: That’s correct ma’am.

Attorney: And the call that you responded to was that he had
kicked in a door. Right?

Officer: Yes.

Attorney: And so, would you agree with me that that’s
inconsistent with certainly having access to her
home with a key. Right?

Officer: One would say, think that, yes.

Tr. p. 288. On re-direct, the DCS attorney showed the officer his police report

to refresh his recollection. He then testified as follows:

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 Attorney: Ok, and what about the relationship that [Mother]
described?

***

Officer: Live in boyfriend of three years.

Id. at 290-91.

[6] In November 2012, DCS had asked the juvenile court to order Mother to

complete another domestic violence assessment; the court declined to do so. In

June 2013, DCS referred Mother for a new assessment anyway, evidently based

on the incident when Father invaded Mother’s home. Mother participated in

the assessment voluntarily. The professional who completed the evaluation

testified that there was no evidence of a current violent relationship at that time.

Id. at 19; see also id. at 30 (domestic violence assessor testified that there was no

evidence of an ongoing violent relationship following April 2014 assessment).

The Family Case Manager for DCS testified that she had no reason to think

that Mother and Father were in a relationship prior to or during April 2014.

Because Mother had already completed the 26-week program with that

provider, the provider declined to accept her for another round. DCS failed to

refer her to a different provider. At various times during the CHINS case, DCS

referred Mother to domestic violence services. She completed the 26-week

program once and did not complete it for any of the other referrals.

[7] In August 2012, Mother participated in a mental health evaluation. The social

worker who evaluated her diagnosed Mother with bipolar disorder and
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 recommended that she continue with homebased therapy and participate in a

medication evaluation. In June 2013, Mother participated in a psychiatric

evaluation. The psychiatrist diagnosed Mother with depression and anxiety,

recommending that Mother continue with therapy. Additionally, the

psychiatrist prescribed Mother thirty days of a mental health medication and

asked that she return in thirty days to be re-checked. Mother did not return in

thirty days. In 2014, after all DCS services had ceased, Mother went on her

own to a mental health provider, at her own cost, for a medication evaluation.

That provider recommended anger management classes, which Mother

completed, again at her own cost. That provider also helped Mother to find the

right mental health medication.

[8] Mother successfully completed homebased case management, as the case

manager concluded that she did not need that service. Id. at 309-10. Mother

participated inconsistently with homebased therapy, though some of it was not

her fault, as multiple therapists left their employment while she was a client.

She worked most successfully with Shimura Akins, between March 2014 and

February 2015. Akins reported that Mother participated consistently aside from

brief periods of incarceration. Mother made progress on all of her goals, visits

with Child always went well, and the home she was living in—the same home

she was living in at the time of the termination hearing—was safe and

appropriate. Akins also stated that Mother was not in a relationship with

Father at that time and had made significant progress by admitting to the

history of domestic violence. With respect to Mother’s mental health, Akins

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 testified that she had sought out a psychologist on her own, had changed her

medication with the help of that provider, and was managing her emotions

better as a result. Id. at 306. Akins recommended that Mother’s parenting time

be increased in the summer of 2014 and DCS refused to do so. Mother became

incarcerated in 2015; Akins had to close the referral as a result of the

incarceration but otherwise reported that Mother had been participating well

with that service.

[9] Mother completed a substance abuse evaluation and no substance abuse

treatment was recommended. Mother participated in random drug screens and

there was no evidence presented at the hearing that she ever provided a dirty

screen.

[10] Mother was incarcerated for relatively brief periods of time during the CHINS

case. Specifically, she was incarcerated for approximately two weeks in June

2014, approximately one month in April 2015, and approximately one month

in October 2015. Id. at 229-32.

[11] DCS had no concerns about Mother’s parenting abilities, which is why Mother

was never asked to complete a parenting assessment. The Family Case

Manager (FCM) testified as follows:

Attorney: . . . [I]sn’t it fair to say that . . . [Mother] and [Child]
have had a strong bond that you’ve been able to
observe?

FCM: Yes.

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 Attorney: She’s a loving mother to him?

FCM: Yes.

Attorney: Ok, and in those observations that you’ve had with
[Mother] interacting with [Child], he had a strong
relationship with her as well? He was bonded with
her.

FCM: Yes he was.

Id. at 234. The FCM also testified that Mother never stopped asking DCS or

the juvenile court for reinstatement of her visits and services once they had been

suspended. Id. at 234-35. Specifically:

Attorney: . . . [W]ouldn’t you agree with me that she’s never
stopped trying to demonstrate that she can safely
parent [Child]?

FCM: She’s made a requests [sic]. So, she’s attempted.

Attorney: Ok, and she’s never stopped trying to get him placed
back in her care or work towards that?

FCM: Correct.

Id. Mother had generally been consistent with visiting Child, and there were no

indications at trial that any provider supervising those visits had any concerns.

Mother’s visits were suspended on March 31, 2015, and the last time she visited

with Child was March 29, 2015.

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[12] In April 2015, all of Mother’s service referrals had been closed. She asked for a

new referral for all services, and DCS refused. In July and October 2015,

Mother asked the court to order all services and visits to be reinstated, and the

juvenile court refused.

[13] At the time of the termination hearing, Mother was employed in a stable job

and had just received a promotion. She was living with her mother, who had

been an approved DCS placement during the CHINS case, and had been living

there for approximately sixteen months. The FCM reported that Mother was

employed more often than not during the CHINS case.

[14] Father was incarcerated throughout much of the CHINS case. The timeline of

his incarcerations is not entirely clear from the evidence presented at trial, but

Father testified as follows regarding the timeline:

 Father was incarcerated at the beginning of the CHINS case until the end
of 2011.
 He became incarcerated again at the end of 2012 and was released in
July 2013 with GPS monitoring. He cut off the GPS device and
absconded from law enforcement for the next six to seven months.
 In December 2013, he began a work release program.
 In March 2014, he became incarcerated in a Department of Correction
facility. He was released June 29, 2015.
 He was arrested in August 2015 for a parole violation and was
incarcerated until January 2016.

Between January and summer of 2012, Father participated with homebased

therapy, parenting time, and random drug screens, as well as completing a

domestic violence assessment, before his incarceration in the summer of 2012,

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 but all services (including visits) were suspended following his 2012

incarceration. During one of his incarcerations, Father completed an anger

management program and a parenting class. The FCM never contacted Father

once, in any way, during any of his periods of incarceration. In November

2012, the juvenile court ordered that new service referrals be made for Father;

the FCM failed to comply. In 2013, when Father was on work release, the

FCM did not contact him or refer services for him. In 2015, when Father was

released, he contacted the FCM and gave her his contact information and

address—at that time, he was living with his grandfather. She did not contact

him or go to his residence. He also requested that the juvenile court order that

services and parenting time be reinstated, but the court refused.

[15] On May 14, 2015, DCS filed a petition to terminate the parent-child

relationship between Mother, Father, and Child. The termination hearing was

held during three days in January and February 2016. On April 28, 2016, the

juvenile court entered an order terminating the parental rights of both parents,

and both parents now appeal.

Discussion and Decision

I. Admission of Evidence
[16] First, Father argues that the juvenile court erroneously admitted certain

evidence. The admission of evidence is entrusted to the discretion of the trial

court, and we will reverse only where the trial court’s decision is against the

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 logic and effect of the facts and circumstances before it. D.B.M. v. Ind. Dep’t of

Child Servs., 20 N.E.3d 174, 178-79 (Ind. Ct. App. 2014), trans. denied.

[17] Father argues that certain evidence that was admitted by the trial court was

inadmissible hearsay. Hearsay is a statement that is not made by the declarant

while testifying at the trial or hearing and is offered into evidence to prove the

truth of the matter asserted. Ind. Evid. R. 801(c). Hearsay evidence is

generally not admissible. Ind. Evid. R. 802.

A. Father’s DOC Records
[18] First, Father contends that the juvenile court should not have admitted DCS

exhibits 39, which is his DOC Record, and 40, which is his record from

Putnamville Correctional Facility. DCS argues that Father waived this

objection because, during the termination hearing, he objected to these exhibits

only on the basis of hearsay and relevance, and did not specifically identify the

business records exception to the hearsay rule. We find that the general hearsay

objection was sufficient to preserve this argument for appeal. See Ward v. State,

50 N.E.3d 752, 756 (Ind. 2016) (cautioning appellate courts not to

unrealistically “insist on detailed doctrinal arguments during the exigencies of

trial,” observing that an objection need simply be sufficient “to let the trial

judge make an informed decision and prevent the objecting party from

switching theories on appeal”).

[19] Exhibits 39 and 40 are clearly hearsay, but were admitted under the exception

for business records. Business records are admissible if:

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 (A) the record was made at or near the time by — or from
information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling,
whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(9) or (10) or with a statute
permitting certification; and

(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of
trustworthiness.

Ind. Evid. R. 803(6). DCS did not offer the testimony of a custodian or other

qualified witness for either of these exhibits; therefore, to be admissible, they

must have been accompanied by a certification that complies with Rule 902.1

Rule 902(11) provides that, “[u]nless the source of information or the

circumstances of preparation indicate a lack of trustworthiness, the original or a

copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as

shown by a certification under oath of the custodian or another qualified

1
Evidence Rule 902 was rewritten effective July 1, 2014, and the subsection relevant to self-authentication of
business records is now Rule 902(11).

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 person,” is self-authenticating and requires no extrinsic evidence of authenticity

to be admissible.

[20] For both exhibits, the affiant of the certification is the keeper of the records for

DOC, but nowhere is it certified that the record was made from information by

someone with knowledge, that the record was kept in the course of regular

activity of the DOC, or that making the record was a regular practice of that

activity. Additionally, the affidavit attached to exhibit 40 states that sixty-four

pages are attached, but the exhibit contains only fifty pages. Exhibit 40 also

contains many documents not readily identifiable as documents prepared by

someone at Putnamville with personal knowledge; for example, Father’s

presentence investigation report, which was prepared by a probation officer,

and abstracts of judgment, which are prepared by the trial court. As the

certifications accompanying exhibits 39 and 40 do not qualify with Indiana

Rules of Evidence 803(6) or 902(11), the juvenile court erred by admitting these

documents into evidence.

B. Testimony Regarding Father’s Criminal History
[21] On direct examination, the Tippecanoe County FCM testified that she had

concerns about substance abuse and domestic violence between the parties.

Mother objected to further testimony regarding “a violent history with Father,”

and the trial court sustained the objection. Tr. p. 43. On cross-examination,

Father elicited testimony that the FCM had learned that Father did not have a

prior Child Protective Services (CPS) history. On redirect, over objection, DCS

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 elicited testimony that Father had a criminal history involving drugs and

violence. Father objected on hearsay grounds, but the trial court overruled,

finding that Father had opened the door to his criminal history by asking the

witness about his CPS history.

[22] During the discussion regarding whether Father had opened the door, Father’s

attorney acquiesced to the fact that the door had been opened, simply arguing

that “any criminal history is limited to whether or not there would be a felony

conviction . . . .” Id. at 49. The FCM then testified that there was a “history of

drug offenses and violent offenses,” and Father did not object. Id. By agreeing

to the admission of evidence of his felonious criminal history, Father invited

any alleged error. See Nichols v. State, 55 N.E.3d 854, 862 (Ind. Ct. App. 2016)

(noting that the invited error doctrine forbids a party to take advantage of any

error that he commits or invites). As a result, we decline to address this issue.

C. Guardian ad Litem Testimony
[23] Next, Father argues that the juvenile court erroneously permitted the Guardian

ad Litem (GAL) to testify regarding what Child had told her he wanted. The

juvenile court permitted the GAL to testify because of her responsibility to “be

the voice of children” in court proceedings. Tr. p. 377. DCS does not direct

our attention to any authority in rule, statute, or caselaw, that creates an

exception to the hearsay rule for GALs, and we can find none. 2 As a result, this

2
DCS seems to argue that because the juvenile court asked the GAL to “paraphrase,” tr. p. 385, Child’s
words rather than relating his specific words. It is well established, however, that a summary of an out-of-

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 testimony was inadmissible hearsay and the juvenile court erred by permitting

it.3

II. Sufficiency of Evidence
[24] Next, both Mother and Father argue that there is insufficient evidence

supporting the termination of their parental rights.

A. Standard of Review
[25] 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

court statement is no less hearsay than repeating verbatim an out-of-court statement. Blount v. State, 22
N.E.3d 559, 563-65 (Ind. 2014). Consequently, this argument is unavailing.
3
DCS argues that Father has waived this argument because he did not object to the testimony at trial.
Mother, however, raised a hearsay objection, so the juvenile court addressed this precise issue before
admitting the evidence. We decline to find waiver under these circumstances.

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 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

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

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

[26] 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

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 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.

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

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

B. Mother
[27] With respect to Mother, the juvenile court found that termination was in

Child’s best interests and that

There is a reasonable probability that the conditions that resulted
in [Child’s] removal and continued placement outside the home
will not be remedied by his mother. Close to five years have
elapsed since [Child’s] CHINS case was filed and [Mother’s]
mental health and therapeutic needs, as well as the issue of
domestic violence still need to be addressed when she does not
feel she needs to and has “self-sabotaging” behaviors. [Mother]
has also not demonstrated that she can maintain stability with
independent housing, income and the ability to remain out of
incarceration.

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 Father’s App. p. 26-27. The juvenile court also found, with respect to both

parents, that

Continuation of the parent-child relationship poses a threat to the
well-being of [Child]. Without adequately addressing domestic
violence, instability and untreated mental health issues, the
parents cannot provide a safe and secure environment and raise
[Child] in a healthy manner. [Child] has been in the dependency
system for almost all of his five years of life. Continuation of the
parent-child relationship only poses a barrier to obtaining
permanency for [Child] through an adoption.

Id. at 27.

1. Probability of Remedy of Conditions
[28] As noted above, one of the ways to support a termination petition is for DCS to

prove by clear and convincing evidence 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. In this case, there are two general reasons Child was

initially removed from Mother’s care and custody: ongoing domestic violence

between Mother and Father, and drug use by Mother. In addition to those

concerns, reasons for Child’s continued placement outside of Mother’s care

included concerns regarding Mother’s mental health and, possibly, concerns

regarding the stability of Mother’s living situation and employment. We will

address each of these in turn.

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 a. Domestic Violence

[29] By far, the most significant issue in the CHINS case was the domestic violence

perpetrated on Mother by Father. And it is undeniable—indeed, Mother herself

does not deny it—that violence in their relationship was a real and serious issue

during the first eighteen months of the CHINS case. At certain points during

that period of time, Mother even recanted her prior accusations of domestic

violence in the context of Father’s criminal proceedings and in the context of

her own services.

[30] Mother did, however, complete a domestic violence assessment, followed by a

26-week domestic violence program. In November 2012, DCS asked the

juvenile court to order Mother to complete yet another domestic violence

assessment. Because Mother’s homebased therapist did not believe that Mother

needed to go through the classes again, the juvenile court denied the request.

Notwithstanding the lack of a court order, Mother later voluntarily completed

another domestic violence assessment. Over the life of the CHINS case, DCS

demanded that Mother complete multiple assessments and take the same 26-

week course no less than five times. At one point, the agency refused to accept

Mother as a client because she had already completed its program. Mother

informed the FCM, who neglected to refer the service to another agency. It is

undisputed that Mother did, in fact, complete the assessment (more than once)

and the 26-week program (once) during the CHINS case.

[31] Mother testified that she ended her romantic relationship with Father at the end

of 2012. The FCM testified that she had no reason to believe that Mother and
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 Father were in a romantic relationship after the end of 2012. The provider who

completed a domestic violence assessment with her in June 2013 said there was

no indication of ongoing domestic violence at that time. Mother’s homebased

therapist testified that in March 2014 Mother and Father were not in a

relationship. The provider who completed yet another domestic violence

assessment in April 2014 said that there were no indications at that time of an

ongoing violent relationship. The GAL testified that she had no reason to

believe Mother and Father were in a relationship or had even seen each other

since mid-2013. Tr. p. 399.

[32] Indeed, the only evidence of any violence between Mother and Father after the

end of 2012 was the incident in the spring of 2013 when Father went to

Mother’s residence, broke down her door, and assaulted her. Mother did

precisely what she was supposed to do pursuant to DCS’s safety plan—she

called the police. The responding officer had no recollection of whether Mother

told him that she was in an ongoing relationship with Father at that time, and

agreed that the fact that Father broke down the door indicated that he did not

have keys to the residence. After reviewing his police report, the officer stated

that Mother had described Father as a live-in boyfriend of three years.4 Mother

described the scene following the assault and her conversation with the officer

as a “hectic situation” where “the officer doesn’t necessarily care about the

4
In fact, it is true that Father had been Mother’s live-in boyfriend for multiple years in the past, long before
the spring of 2013. That Mother labeled him as such in the midst of a stressful situation is unsurprising.

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 rundown of your, you know, your relationship. He doesn’t care about the

details. He just wants to know about the situation at hand.” Id. at 440. So,

essentially, Mother may have used shorthand to explain her relationship with

Father to the officer. Regardless, this slim testimony from the officer does not

constitute clear and convincing evidence of ongoing domestic violence in the

spring of 2013.

[33] Moreover, even if we give DCS the benefit of the doubt and assume solely for

argument’s sake that Father and Mother were still in a relationship in the spring

of 2013, there is zero evidence in the record of an ongoing relationship after that

time. Specifically, in the two and one-half years between spring of 2013 and the

termination trial in January 2016, there is not a scintilla of evidence suggesting

that the parents were in a relationship of any kind.

[34] Mother’s most successful therapeutic relationship during the CHINS case was

with homebased therapist Shimura Akins, who worked with Mother between

March 2014 and February 2015. During that period of time, Akins observed

significant progress in Mother’s ability to acknowledge the violence in her

relationship with Father and its effects on Child:

Attorney: You testified that in her work with you, [Mother]
was able to articulate an understanding of the risks
of domestic violence on her relationship with
[Child] and for him. Right?

Akins: Yes.

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 Attorney: Did she ever tell you when or how she came to that
understanding?

Akins: It was months after working with her. It wasn’t
immediate. I think just the toll of having to do all
the services and just going through everything and
having to prove yourself all the time. She got to
that point where she was like, you know, I messed
up, because when I first got her, she was so angry
with DCS that it was just all about fighting DCS.
So, after awhile, after we got a chance to get some
of that off of her, then we could take a look at
what’s really going on and so, yeah. I would say by
November [2014] that she kind of came to that
conclusion.

Id. at 325-26. Akins elaborated, explaining that Mother

[g]ot to the point where she was able to say, I realize that I was in
an abusive relationship and I stayed in it too long and my son has
been involved in this for a very long time and she had a lot of
regret and remorse about that and a lot of guilt for her son being
in foster care.

Id. at 318. In other words, Mother did precisely what DCS had hoped for—she

learned and benefitted from the services they provided her. She evolved and

made progress on a number of issues, including domestic violence and its

effects on her child.

[35] DCS and the juvenile court both focus heavily on the incident in the spring of

2013 when Father broke down Mother’s door and assaulted her. We find it

extraordinarily troubling to say that a parent who is a victim of domestic

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 violence, and has taken steps to end that relationship, deserves to have her

parental rights terminated because the child’s other parent assaulted her. The

evidence in the record establishes that Mother struggled with breaking free of

the domestic violence at the outset of the CHINS case, but completed a 26-

week domestic violence program, ended her relationship with Father, and made

significant progress in therapy with respect to the goal of processing the

domestic violence in her life. There is no evidence in the record of any

relationship of any kind between Mother and Father in the two and one-half

years leading up to the termination hearing. We do not find that this evidence

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

reason—domestic violence—for Child’s initial and continued removal from

Mother will not be remedied.

b. Substance Abuse

[36] A second reason for Child’s initial removal from Mother was Mother’s

admitted marijuana use at that time. During the CHINS case, Mother

completed a substance abuse assessment, which recommended no further

substance abuse services. Mother completed a number of random drug screens,

and there is no evidence in the record that she provided any problematic

screens. In short, there is no evidence in the record supporting a conclusion

that this reason—substance abuse—for Child’s initial removal from Mother will

not be remedied.

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 c. Mother’s Mental Health

[37] Although it was not among the reasons for Child’s initial removal, concerns

about Mother’s mental health arose during the CHINS case and likely

contributed to Child’s continued removal from her care and custody. In April

2012, Mother participated in a mental health assessment with a social worker,

who diagnosed her with bipolar disorder and recommended a medication

evaluation and continued participation in therapy. Pursuant to that

recommendation, in August 2012, Mother participated in a psychiatric

evaluation with a psychiatrist, who disagreed with the social worker’s diagnosis

and instead diagnosed Mother with depression and anxiety. The psychiatrist

prescribed thirty days of medication for Mother with instructions to return in

thirty days for a re-check; Mother did not return. Mother met with the same

psychiatrist in 2013 with the same result—medication and instructions to return

in thirty days, which Mother did not do.

[38] Mother participated with homebased therapy during the CHINS case, albeit

inconsistently. Her most successful homebased therapy relationship was with

Akins, for a period of nearly a year leading up to February 2015. Akins

reported that Mother participated well and made progress in all of her goals.

[39] Akins also confirmed an important portion of Mother’s testimony. Mother

testified that after her services were suspended by the juvenile court in the

CHINS case, and she asked for services to be reinstated and was denied

(repeatedly), she went to a mental health provider on her own, participated in

an assessment, and complied with the recommendations, including an anger
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 management class. According to Akins, “[Mother] did take it upon herself to

seek out [a] psychologist and they changed her medication. She did that on her

own towards the end of me working with her.” Tr. p. 306. Akins confirmed

that as a result, Mother began to better manage her emotions. Id.

[40] Because DCS ceased to provide Mother with services at some point during

2014 or 2015, there is no evidence in the record contradicting the testimony of

Mother and Akins that, as of (approximately) the end of 2014, Mother was

complying with mental health recommendations, taking prescribed medication,

and showing improvement as a result. Here, again, DCS refused Mother’s

repeated pleas to re-refer services. Appallingly, the last time the FCM had even

spoken with Mother was in July 2015—six months before the termination

hearing took place. Id. at 204. Mother took the initiative and began

participating in mental health treatment on her own. Therefore, the record

reveals that in the year leading up to the termination trial, Mother had made

significant progress with respect to her mental health. We cannot say that this

is clear and convincing evidence that this condition—her mental health—

contributing to Child’s continued removal was unlikely to be remedied.

d. Mother’s Stability

[41] The final condition that likely contributed to Child’s continued removal from

Mother’s care and custody was her stability, including housing, employment,

and incarceration. With respect to housing, Mother had been living with her

mother for over a year—sixteen months—leading up to the termination

hearing. Her mother had been approved as a placement for Child during the
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 CHINS case, so the people who live in that home, and the home itself, met with

DCS’s approval. This certainly constitutes stable housing. With respect to her

employment, it is undisputed that at the time of the termination hearing,

Mother had stable employment. In fact, she had just received a promotion and

a raise. Id. at 436. In general, Akins testified that Mother did not need

homebased case management services because she was “resourceful” and had

employment, a place to live, transportation, and insurance. Id. at 310. The

FCM testified that for the most part, Mother maintained employment

throughout the CHINS case. Id. at 203-04.

[42] It is undeniable that Mother had multiple, relatively brief, periods of

incarceration during the CHINS case. Specifically, she was incarcerated for

two weeks in June 2014, approximately one month in April 2015, and

approximately one month in October 2015. Id. at 229-32. At the time of the

termination trial, Mother had no pending criminal matters aside from a

suspended driver’s license, which she was working to have reinstated. While

that is far from an illustrious record, the mere fact that Mother was incarcerated

for an aggregate period of approximately four months during a five-year-long

CHINS case, all while Child was not in her care, is far from sufficient to

support a termination of her parental rights. See In re K.E., 39 N.E.3d 641, 643

(Ind. 2015) (emphasizing that “incarceration is an insufficient basis for

terminating parental rights”). We find that the evidence in the record does not

clearly and convincingly support a conclusion that this reason—Mother’s

stability—contributing to Child’s continued removal is unlikely to be remedied.

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[43] In sum, Mother struggled during the outset of this case. She was a nineteen-

year-old first-time mother in a violent relationship with her child’s father. She

resented DCS’s presence in her life and had untreated mental health needs. But

slowly over the course of the CHINS case, she made progress. She ended the

relationship with her batterer. She achieved stable employment and housing.

She managed to get mental health treatment on her own. For a period of time,

Child was even back in her care. But after Mother was again a victim of

violence, DCS removed Child from her care, never to be returned. DCS

stopped providing her with services and visits. Notwithstanding her pleas for

over a year, she was never given another chance. Her arc over the course of the

CHINS case, in all areas, shows self-awareness, improvement, and

determination to do what needed to be done. We cannot say that this evidence

remotely establishes that the conditions leading to Child’s removal were

unlikely to be remedied.

2. Well-Being of Child
[44] Notwithstanding our conclusion above, as DCS needs to prove only one of the

two relevant elements, we also need to address whether DCS established by

clear and convincing evidence that continuation of the parent-child relationship

posed a threat to Child’s well-being. Without reiterating what has already been

said herein, we note again that Mother had made progress on all of the issues

leading to the initiation of the CHINS case and Child’s removal.

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[45] As for the bond between Mother and Child and Mother’s parenting skills, the

evidence in the record is unanimous.

 The FCM testified that Mother’s parenting of Child was not a concern
for DCS. Tr. p. 209. The FCM agreed that Mother and Child had a
“strong bond” and that she is a “loving mother to him[.]” Id. at 209, 234.
Additionally, the FCM agreed that Mother has “never stopped trying to
demonstrate that she can safely parent [Child]” and has “never stopped
trying to get him placed back in her care or work towards that[.]” Id. at
234-35.
 Akins testified that she asked that Mother have more parenting time with
Child (a request that was denied) because “it was obvious that they had a
bond and he enjoyed the time that he had with his mom and he looked
forward to it and . . . he would ask me, when are we, when am I coming
back to visit[.]” Id. at 301. Visits between Mother and Child went well,
and she met all of his needs during those times. Id. at 323.
 Akins stated that Mother and Child were bonded and that if increased
parenting time had been granted, that bond would have been
strengthened. She also testified that if she had been able to continue
working with Mother, Child “could have safely been returned to her care
at some point[.]” Id. at 330.
 The GAL testified that Mother and Child had a “strong relationship”
and that Mother was “very in tune to [Child’s] needs during visits.” Id.
at 393. Mother “was very comfortable with him and he was very
comfortable with her.” Id.

In other words, notwithstanding her own struggles, Mother loved Child, they

had a strong bond, and no one had any concerns with respect to her parenting

skills. At the time of the termination hearing in January 2016, she had not seen

him since March 2015—because her visits were suspended. Despite Mother’s

repeated requests for visits to be reinstated, she had not seen her son for nearly a

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 year. If this is anything other than DCS setting her up for failure, we cannot see

what it would be.

[46] We acknowledge the very real concerns about the need for stability in Child’s

life. He has been in foster care for most of his life. The need for permanency

and stability in a child’s life cannot be overstated. However, that need cannot

trump a parent’s fundamental constitutional right to parent her child; nor can it

trump the substantial bond that still existed between Mother and Child. On this

record, we do not find clear and convincing evidence that a continuation of the

parent-child relationship posed a risk to Child’s well-being. Because DCS has

not proved either of the required statutory elements by clear and convincing

evidence, the juvenile court erred by terminating the parent-child relationship

between Mother and Child. We reverse and remand for further proceedings.

C. Father
[47] Next, Father also argues that the evidence is insufficient to support the

termination order. The juvenile court found that there is a reasonable

probability that the conditions that resulted in Child’s removal from Father’s

care and custody will not be remedied: “[Father] has demonstrated by his

minimal effort at participating in services and court proceedings that he is

unwilling to be a parent to [Child]. He has not addressed issues of instability

and domestic violence, and has not demonstrated he can remain out of jail and

available to parent.” Father’s App. p. 27. The juvenile court also found that

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

termination is in his best interests.

[48] The timeline of Father’s actions and incarcerations throughout the CHINS case

is somewhat muddled, but we have reconstructed it here to the best of our

ability.

 In June 2011, the CHINS case was filed. The FCM made no attempt to
contact Father even though he was present at the initial CHINS hearing.
DCS Ex. 11. In fact, the FCM did not contact Father until October
2011. Tr. p. 181.
 Father was incarcerated from June to November 2011.
 In February 2012, Father contacted the FCM, got involved with the
CHINS case, and began participating in services, including homebased
case management, homebased therapy, and random drug screens. Id. at
182-83. Father was not listed on the parenting time referral completed by
the FCM. Id. at 185-86. Father also completed a domestic violence
assessment and began participating with supervised parenting time. Id. at
186, 192. The FCM never dropped in on a visit involving Father so she
had no way to evaluate his parenting skills or the bond with Child. Id. at
193.
 In February 2012, DCS made its first request of many to change Child’s
permanency plan to adoption. The juvenile court denied the request.
 In May 2012, Father attended a Child and Family Team Meeting. The
FCM’s notes indicated that Father was determined, competent,
organized, and passionate. Id. at 191.
 Sometime after that meeting, the parents broke up. At that time, DCS
changed its own internal case plan to reunification with Mother. Id.
Around that time, Father told the FCM that he no longer wished to
participate with services, as he believed his participation was futile. At
that point, as DCS had decided that the plan was to reunify with Mother,
the FCM stopped making any effort to contact Father, keep him apprised
about the CHINS case, or notify him of team meetings. Id. at 192.

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  In November 2012, the juvenile court ordered DCS to re-refer services
for Father. The FCM failed to do so. Id. at 196, 242.
 Father was incarcerated from the end of 2012 through July 2013.
 In 2013, Father was placed on work release. He contacted the FCM,
leaving her a voicemail telling her he had been released and notifying her
of his location. She did not contact him or refer services. Father
attempted to start domestic violence classes but was unable to because
there was no open referral for him at that time. Id. at 410-11.
 In September 2013, the FCM reported to the juvenile court that Father
no longer wished to participate in services. The last time she had spoken
with him was nearly a year and a half earlier, in May 2012. Id. at 196-97.
 Father was incarcerated from March 2014 through June 2015 and from
August 2015 through January 2016.
 At some point during 2015, Father asked the juvenile court to order DCS
to make new service referrals for him. The court declined and DCS did
not make any referrals. Id. at 243-44.
 In January 2016, Father was released from incarceration. He called the
FCM and left her a voicemail telling her where he was located. She
called the facility but did not go to see him, and never made contact with
him after his release. Id. at 248-49.

[49] Never once during Father’s multiple incarcerations did the FCM attempt to

visit with or contact him in any way. She did not send him the CHINS court’s

orders, and did not inform him that there may have been services he could have

completed while incarcerated. Id. at 187-88, 413-14. Notwithstanding the

FCM’s lack of direction, Father completed a parenting class while on work

release and an anger management class while incarcerated. Id. at 409, 412.

Father had gotten a job the day before the termination hearing and was living

with his grandfather. Id. at 415.

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[50] There is an extraordinarily troubling pattern of behavior in this case. The FCM

made little to no effort to contact Father at the initiation of the CHINS case.

And then, after DCS made its own internal decision that the case plan was to

reunify Child with Mother, the FCM’s minimal efforts to engage Father ceased

altogether. While Father’s own record is far from sterling, the evidence in the

case establishes that, when he was not incarcerated, he made multiple attempts

to contact the FCM and engage in services; furthermore, when he was

incarcerated or on work release, he participated with services available to him.

[51] Our Supreme Court has recently reemphasized that “‘[t]ermination is intended

as a last resort, available only when all other reasonable efforts have failed.’” In

re R.S., 56 N.E.3d 625, 631 (Ind. 2016) (quoting In re V.A., 51 N.E.3d 1140,

1151-52 (Ind. 2016)). In this case, it cannot be said that all other reasonable

efforts have failed, given that DCS made an explicit internal decision that it

would exercise no effort whatsoever to reunify Father with Child, and

proceeded to follow through with that plan. Father has made multiple attempts

to contact DCS and reengage with services, notwithstanding complete radio

silence from the FCM during his periods of incarceration, and has been

rebuffed at every turn. He deserves a genuine chance to prove that he can

parent his child. It may be that he cannot meet that bar, but he has a

constitutional right to try. Under these circumstances, we find that the evidence

does not support the juvenile court’s conclusion that Father is unwilling to be a

parent to Child; nor does it support the conclusion that termination is in Child’s

best interests. Therefore, we reverse and remand for further proceedings.

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[52] The judgment of the juvenile court is reversed and remanded for further

proceedings.

Mathias, J., and Pyle, J., concur.

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