FILED
Jun 21 2019, 8:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amanda McIlwain Curtis T. Hill, Jr.
Legal Aid Corporation of Attorney General of Indiana
Tippecanoe County Abigail R. Recker
Lafayette, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination June 21, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of: 18A-JT-3110
A.B. (Minor Child), Appeal from the Tippecanoe
Superior Court
and
The Honorable Faith A. Graham,
C.B. (Mother), Judge
The Honorable Tricia L.
Appellant-Respondent,
Thompson, Magistrate
v. Trial Court Cause No.
79D03-1804-JT-48
Indiana Department of
Child Services,
Appellee-Petitioner
Baker, Judge.
Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019 Page 1 of 17
[1] C.B. (Mother) appeals the trial court’s order terminating her parent-child
relationship with her child, A.B. (Child). Mother argues that there is
insufficient evidence supporting the trial court’s conclusion that the conditions
resulting in the placement of Child outside Mother’s custody will not be
remedied, that the continuation of the parent-child relationship poses a threat to
Child’s well-being, and that the termination of the parent-child relationship is in
the child’s best interest. Finding the evidence insufficient, we reverse and
remand for further proceedings.
Facts
[2] Child was born in January 2011 to Mother and B.B. (Father).1 On April 18,
2017, the Department of Child Services (DCS) and law enforcement officers
went to Mother’s home after receiving a report that Child’s half-brother
(Sibling), who was then three years old, had been neglected due to lack of
supervision by Mother. When they arrived, Sibling was walking down the
street unsupervised; Mother was inside, passed out on the couch with burnt
spice cigarettes near her and within a child’s reach. The officers tried several
times to wake Mother. Once they did, they arrested her, and DCS placed Child
and Sibling in relative care. The State charged Mother with Level 6 felony
1
Father is not a party to this appeal.
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neglect of a dependent and Class A misdemeanor possession of a synthetic drug
or lookalike substance. Mother remained incarcerated until April 22, 2017.
[3] On April 19, 2017, DCS filed a petition alleging both children to be children in
need of services (CHINS) based on the above facts.2 On May 15, 2017, a
factfinding hearing took place, after which the juvenile court adjudicated Child
to be a CHINS. On May 25, 2017, the juvenile court entered its dispositional
and parental participation decrees, ordering Mother to participate in parenting
time, a substance abuse assessment and all recommendations, case
management, a parenting assessment and all recommendations, random drug
screens, a mental health evaluation and all recommendations, individual
counseling and all recommendations, and family therapy and all
recommendations.
Mother’s Participation with Services and Visits
[4] In May 2017, DCS referred Mother to Bauer Family Resources for parenting
time and case management. In May and June 2017, Mother participated in
case management and her parenting visits were positive, with Mother providing
appropriate care for the children and no safety concerns reported. Mother then
missed multiple visits in July and August 2017. Mother reported that she was
2
Sibling’s father ultimately took custody of him. Sibling is not part of this appeal.
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depressed and that her depression was why she disengaged with visitation.
Because Mother missed visits, in August 2017, Bauer closed its services to her.
[5] In May 2017, DCS referred Mother to Wabash Valley Alliance (WVA) for a
mental health evaluation, which Mother completed. WVA also recommended
that Mother participate in individual therapy and family therapy.
[6] On June 13, 2017, Mother completed an intake assessment with an addictions
counselor at WVA. Mother told the counselor that she had used alcohol in the
past but that she had never used illegal drugs. Following the assessment, the
counselor recommended that Mother complete a substance abuse assessment
and participate in individual counseling for her symptoms of depression.
[7] On July 31, 2017, Mother completed her substance abuse assessment at WVA.
During the assessment, Mother indicated that she was using alcohol,
methamphetamine, and opiates, and that she had used methamphetamine three
days before the assessment. The treatment provider recommended that Mother
attend an intensive outpatient program (IOP). On September 5, 2017, Mother
attended one IOP session at WVA; she was later discharged for noncompliance.
In October 2017, DCS referred Mother to Bauer for another IOP, which
Mother did not complete. On August 22, 2017, Mother requested a medication
evaluation; it is unclear from the record whether she received a referral for it.
[8] On August 30, 2017, the juvenile court stated that Mother’s parenting time may
continue so long as she submitted to all requested drug screens and refrained
from using or testing positive for methamphetamine, but that if she tested
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positive, her parenting time would be immediately suspended and would not
resume until further order of the juvenile court. After Mother tested positive for
methamphetamine on September 28, 2017, the juvenile court suspended her
parenting time. Family Case Manager (FCM) Samantha Goltz testified that
Mother “was given the opportunity to participate in I believe 30 days of clean
screens and not be missing any screens” but that Mother did not comply with
those terms and has not been allowed to visit Child since then. Tr. Vol. II p. 77.
[9] Mother requested that visitation be reinstated. Mother testified that in October
2017, she requested a Skype or telephone visit if she could not have an in-
person visit due to her failing the drug screen. DCS denied her request,
believing it would be detrimental to Child. In February 2018, DCS denied
Mother’s request because Mother did not participate in drug screens and had
not seen Child in a long time. In June 2018, DCS denied Mother visitation
because of the length of time that had passed since Mother’s last visit with
Child. DCS never reinstated visits during these proceedings.
[10] In November 2017, DCS referred Mother to case management at Lifeline
Youth and Family Services; Lifeline later discharged her due to lack of contact.
However, Mother was incarcerated from November 6 through December 16,
2017, for contempt of court because she failed to pay child support for another
child. She was then on work release until January 5, 2018.
[11] FCM Goltz made a referral for a psychological evaluation on March 5, 2018,
and although Mother was incarcerated again on March 26, 2018, FCM Goltz
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did not renew the referral because she did not know when Mother would be
released. Mother’s incarceration, which was for the neglect of a dependent
charge (to which Mother had pleaded guilty) that led to this case, lasted through
May 23, 2018. Following her arrest, she was on house arrest through August 1,
2018. Mother was on probation at the time of the termination hearing.
[12] At the start of these proceedings, Mother was seeking housing because her
residence at the time was being investigated for mold. She testified that she had
been living in the same place since November 2017, and at the time of the
termination hearing, she was facing eviction because the property owners sold
the building. She testified that she was actively looking for housing, and that if
she needed to, she could stay with her father or her boyfriend’s mother. As for
employment, at the time of the termination hearing, Mother was in her second
month of employment at Steak ‘n’ Shake; she had previously worked for a
cleaning company. Mother was also taking prescribed medication to treat her
depression and was working to obtain health insurance.
Mother’s Drug Use and Screens
[13] DCS referred Mother for drug screens. Mother missed twenty-two screens
between August 22, 2017, and October 10, 2017. Mother completed eleven
screens from September 27, 2017, to November 1, 2017, that were negative of
all substances. On October 13 and 26, 2017, she tested positive for alcohol. On
September 28, 2017, Mother tested positive for methamphetamine.
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[14] In the three months leading up to the termination hearing, Mother consistently
participated in drug screens, all of which were clean, and she was still
participating at the time of the hearing.3 FCM Goltz testified that because
Mother had been incarcerated before the three months in which she consistently
tested clean, Mother could have been clean for approximately five months.
Mother testified that, at the termination hearing, she was five days shy of five
months of sobriety.
Child
[15] When this case began, Mother and Child had a bond. Court Appointed Special
Advocate (CASA) Suzanne Wetzel testified that in June 2017, Mother was
“loving” and “attentive” toward Child. Tr. Vol. II p. 46. Child has some
developmental delays that involve irregular social behaviors, including toilet
training delays. She has been diagnosed with Attention-Deficit Hyperactivity
Disorder and impulse-control disorder. On May 26, 2017, Child completed an
intake appointment with a therapist who recommended that Child participate in
case management and medication management to address Child’s behaviors
and in individual therapy to work on coping skills and establishing boundaries.
[16] Between September 11 and 22, 2017, Child participated in case management.
Child struggled to comply with directions, had difficulty transitioning between
3
From May 23 through August 1, 2018, Mother submitted to approximately seven drug screens for her
criminal case. It is unclear whether she was also screening through DCS.
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activities, and became fearful when it was time to use the restroom. The
treatment provider was concerned that Child may have suffered from trauma
that resulted in her fear of using the restroom. CASA Wetzel testified that
Child has made significant progress both at home and at school and is now able
to be attentive and stay focused. Her toilet training has improved. Child was
taking medication for her ADHD and aggression.
[17] Since being removed from Mother’s care, Child has been placed in four foster
homes and with two relative caregivers. At the time of the termination hearing,
Child was in relative placement in Florida; she was doing well in that
placement, and her caregivers were willing to adopt her.
Termination Proceedings
[18] On April 4, 2018, DCS filed a petition to terminate the parent-child relationship
between Mother and Child. DCS stopped funding services for Mother in June
2018 because Mother was not participating in services. A factfinding hearing
took place on June 27 and August 22, 2018. During the hearing, FCM Goltz
testified that termination was in Child’s best interest because Child is in a stable
and loving environment and is doing well. CASA Wetzel also recommended
termination based on Mother’s failure to comply with services and her lack of
participation in Child’s life; she also testified that termination was in Child’s
best interest because Child is thriving in her current placement and that
disruption would be detrimental to her.
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[19] On November 21, 2018, the juvenile court entered an order terminating the
relationship. Mother now appeals.
Discussion and Decision
I. Standard of Review
[20] Our standard of review with respect to termination of parental rights
proceedings is well established. In considering whether termination was
appropriate, we neither reweigh the evidence nor assess witness credibility.
K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will
consider only the evidence and reasonable inferences that may be drawn
therefrom in support of the judgment, giving due regard to the trial court’s
opportunity to judge witness credibility firsthand. Id. Where, as here, the trial
court entered findings of fact and conclusions of law, we will not set aside the
findings or judgment unless clearly erroneous. Id. In making that
determination, we must consider whether the evidence clearly and convincingly
supports the findings, and the findings clearly and convincingly support the
judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing
evidence that the child’s emotional and physical development are threatened by
the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,
839 N.E.2d 143, 148 (Ind. 2005).
[21] 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:
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(i) The child has been removed from the parent for at least
six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31–34–21–5.6
that reasonable efforts for family preservation or
reunification are not required, including a description of
the court's finding, the date of the finding, and the manner
in which the finding was made.
(iii) The child has been removed from the parent and has
been under the supervision of a local office or probation
department for at least fifteen (15) months of the most
recent twenty-two (22) months, beginning with the date
the child is removed from the home as a result of the child
being alleged to be a child in need of services or a
delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
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(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.
II. Drug Screens
[22] Initially, we address an issue raised by neither of the parties. The trial court’s
order included this finding of fact:
15. Mother tested positive for methamphetamine on July 17,
2017, July 31, 2017, and September 28, 2017. Mother tested
positive for alcohol on two (2) drug screens in October 2017.
Mother failed to submit to numerous drug screens as requested.
Appealed Order p. 3. DCS submitted evidence regarding Mother’s drug screens
through an exhibit, which included affidavits from a “Certifying Scientist and
Custodian of Records” for a toxicology laboratory and a “custodian of the
records” for another laboratory and Mother’s drug screen results. Appellee’s
Ex. Vol. III p. 4-49. DCS did not elicit expert testimony regarding these drug
screens during the termination hearing.
[23] As we have recently stated, exhibits containing drug test results do not fall
under the business records exception to the rule against hearsay and, although
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Mother did not make a hearsay objection,4 the exhibit should have been
inadmissible as hearsay. See Matter of L.S., — N.E.3d — at *4 (Ind. Ct. App.
May 21, 2019). Admission of this evidence requires expert testimony and the
opportunity for cross-examination. Accordingly, the trial court erred by
admitting the exhibit into evidence and by relying on them in its order.
III. Remedy of Conditions
[24] Mother first argues that DCS did not prove by clear and convincing evidence
that there is a reasonable probability that the conditions resulting in Child’s
removal will not be remedied. Child was initially removed from Mother
because of concerns of neglect and substance abuse.
[25] When this case began, Mother “was wanting to work on getting her
relationship back with [Child] and being – and getting life back.” Tr. Vol. II p.
42. Child’s therapist testified that “for all intents and purposes at that time
[Mother] had good intentions.” Id. CASA Wetzel testified that in June 2017,
Mother was “loving” and “attentive” toward Child. Id. at 46.
[26] Although Mother suffered a relapse with her drug use and was twice
incarcerated during these proceedings, by the time of the termination hearing,
Mother had completed a mental health assessment, a substance use assessment,
4
Mother objected to the admission of this exhibit because the exhibit did not include all of Mother’s screens
throughout the proceedings, but instead included screens only through June 2018. We admonish DCS to be
thorough in its submission of evidence.
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and, during her incarceration, a psychological evaluation. She also had
complied with her criminal case. By the time of the termination hearing,
Mother had maintained sobriety for at least three months, if not longer. She
also had stable employment for two months, had applied for health insurance,
and had addressed her mental health needs by visiting her doctor and starting
medication. Although the State argues that Mother likely will be unable to
maintain her sobriety long-term without treatment, Mother has maintained her
sobriety even after DCS stopped funding services in June 2018.
[27] Moreover, Mother missed some of her services because she was incarcerated.
Specifically, in November 2017, DCS referred Mother to case management at
Lifeline; Lifeline later discharged her due to lack of contact. However, Mother
was incarcerated from November 6 through December 16, 2017, for contempt
of court because she failed to pay child support for another child. Similarly,
when Mother did not complete the psychological evaluation that FCM Goltz
referred for her because of her incarceration, FCM Goltz did not renew the
referral because she did not know when Mother would be released. It is well
established that incarceration is an insufficient basis for terminating parental
rights, K.E. v. Indiana Dep’t of Child Servs., 39 N.E.3d 641, 643 (Ind. 2015), and
we decline to hold against Mother her inability to participate in referred services
because she was incarcerated.
[28] As for Mother’s living environment, Mother testified that she has been living in
the same place since November 2017, her incarcerations notwithstanding. At
the time of the termination hearing, she was facing eviction because the
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property owners sold the building. She testified that she was actively looking
for housing, and that if she needed to, she could stay with her father or her
boyfriend’s mother. We find no evidence in the record to contravene Mother’s
testimony that she has had or will have appropriate housing. Indeed, neither
FCM Goltz nor CASA Wetzel had visited Mother’s residence.
[29] Under these circumstances, there is not clear and convincing evidence
supporting the trial court’s conclusion that there is a reasonable probability that
the reasons for Child’s placement outside of Mother’s care and custody will not
be remedied.
IV. Child’s Well-Being
[30] Because the statute is phrased in the disjunctive, we must also consider whether
DCS established by clear and convincing evidence that there is a reasonable
probability that the continuation of the parent-child relationship poses a threat
to Child’s well-being.
[31] The trial court did not cite any specific facts to support its conclusion that the
continuation of the parent-child relationship posed a threat to Child’s well-
being. The trial court simply stated that the “child needs stability in life. The
child needs parents with whom the child can form a permanent and lasting
bond and who will provide for the child’s emotional, psychological, and
physical well-being. The child’s well-being would be threatened by keeping the
child in parent-child relationships with Mother . . . .” Appealed Order p. 4.
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[32] At the start of this case, Mother and Child were bonded. A Bauer report from
July 2017 noted that Mother “has a bond with [Child] and [Sibling]; as
evidence by her interactions with [Sibling] and [Child] during parenting time
and how [Sibling] and [Child] run and hug [Mother] upon seeing her during
parenting time.” Appellee’s Ex. Vol. II p. 68. That same report indicated that
Mother appropriately engaged with and took care of the children.
[33] The State contends that Mother failed to complete the actions necessary to
resume visitation with Child. It is accurate that Mother was advised that if she
continued to test positive for methamphetamine, her visits with Child would be
suspended; after Mother tested positive and the juvenile court suspended her
visits, the juvenile court provided that Mother would be able to resume visits if
she submitted clean drug screens for thirty days, but Mother failed to do so.
[34] Yet the record is clear that Mother wanted another chance so she could
maintain her bond with Child—and DCS refused to give Mother this chance.
DCS justified its decision in part by arguing that the visits would be traumatic
to Child based on the length of time that had passed since Child had last seen
Mother. Yet Mother was unable to rectify that potential issue because DCS
denied her any additional visitation. Moreover, DCS did not explain why the
passage of time between visits would make another visit traumatic for Child.
Considering that Child was placed in six different homes throughout these
proceedings, we find DCS’s reasoning puzzling. Indeed, it is hard to
understand how seeing a parent with whom she has a bond could be more
traumatic than bouncing from placement to placement. To terminate a parent-
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child relationship based on the circular logic that DCS employed in this case
regarding visitation is not a result that we can sanction.
[35] In short, the record does not hold clear and convincing evidence of a reasonable
probability that the continuation of the parent-child relationship poses a threat
to Child’s well-being.
V. Child’s Best Interests
[36] Finally, we consider the general question of what is in Child’s best interests.
Stability and consistency are important for every child. Throughout these
proceedings, Mother has made noteworthy improvements with her sobriety and
personal stability. Mother and Child had a bond when this case began. Mother
has exerted herself to remedy her situation and become a better caregiver.
Mother wants to have a relationship with Child and wants to parent Child.
[37] CASA Wetzel testified that she believed that termination was in Child’s best
interest because Child was thriving in her current placement and the disruption
would be “extremely detrimental to her.” Tr. Vol. II p. 48. It seems, then, that
DCS recommended termination based on the grounds that Child needs stability
and would be harmed by yet another placement. Yet the record is devoid of
evidence that Child would be affected if termination were delayed to give
Mother an opportunity to maintain her sobriety, participate in services, and
resume visitation with Child, nor is there evidence that Child’s current
caregivers’ willingness to adopt her would be affected by putting off
termination.
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[38] We acknowledge that Mother must continue to build a stable, sober life,
participate in services, and preserve her bond with Child. Yet, based on the
record, we simply cannot say that clear and convincing evidence exists that, at
this point, the termination of this relationship is in Child’s best interests.5
[39] The judgment of the trial court is reversed and remanded for further
proceedings.
Najam, J., and Robb, J., concur.
5
Mother also argues that DCS violated her due process rights by filing a petition to terminate her parental
rights despite not providing appropriate services. Because we addressed her concerns regarding those services
in our discussion of the substantive issues, we need not also address them as procedural errors.
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