Opinion
24A-JT-18
06-21-2024
In Re: The Involuntary Termination of the Parent-Child Relationship of: W.H. (Minor Child) v. Indiana Department of Child Services, Appellee-Petitioner and J.H. (Mother) and C.H. (Father), Appellants-Respondents
ATTORNEY FOR APPELLANTS Andrew R. Rutz Court Appointed Public Defender New Albany, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Floyd Circuit Court Trial Court Cause No. 22C01-2303-JT-165, The Honorable Justin Brown, Judge.
ATTORNEY FOR APPELLANTS Andrew R. Rutz Court Appointed Public Defender New Albany, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana.
Brown and Pyle, Judges concur.
MEMORANDUM DECISION
May, Judge.
[¶1] J.H. ("Mother") and C.H. ("Father") (collectively "Parents") appeal the involuntary termination of their parental rights to W.H. ("Child"). Mother and Father raise issues regarding their due process rights, which we restate as:
1.1 Whether the Department of Child Services ("DCS") violated Mother's right to due process when it did not progress Mother's visitation with Child past supervised visitation; and
1.2 Whether the trial court violated Father's due process rights when it denied his motion to continue the termination factfinding hearing.
In addition, Mother raises several issues regarding the trial court's findings and conclusions, which we revise and restate as:
2.1 Whether the evidence supported the trial court's findings regarding: 2.1.1 Mother's visitation with Child; and 2.1.2 Mother's compliance with services;
2.2 Whether the trial court's findings support conclusions 21, 22, 23, 24, and 25, in which the trial court concluded the conditions under which Child was removed from Parents' care would not be remedied and the continuation of Child's relationship with Parents was a threat to Child's well-being.
We affirm.
Facts and Procedural History
[¶2] Parents are the biological parents of Child, born February 18, 2021. On the same day, DCS received a report alleging Mother used "meth, heroin, and spice" during her pregnancy and hospital staff had observed Mother ingesting those substances just prior to labor. (Ex. Vol. III at 20.) Based on the hospital's report, DCS visited Mother and Child later the same day in the hospital. A biological sample collected from Mother on the day of Child's birth was positive for methamphetamine and amphetamine. Mother admitted using marijuana while pregnant but denied using any other drugs. She told DCS she did now know why she tested positive for methamphetamine. Mother reported she had been arrested the month prior in Louisville, Kentucky, for having "a baggie of dust on her" and was homeless. (Id.) Mother also told DCS she had an untreated case of syphilis. Father could not care for Child at the time of Child's birth because Father was incarcerated "due to a violation of [a protective order] with his mother." (Id. at 21.) Based on the positive drug screen, Mother signed a safety plan with DCS the same day, "detailing she will ensure the safety of [Child], cooperate with DCS, be a sober caregiver to [Child], and will stay with [maternal grandmother] until she finds housing of her own." (Id.)
The specific charges filed against Mother, if any, are unclear from the record.
[¶3] On March 1, 2021, Child was scheduled for release from the hospital. Test results revealed Child tested positive for illegal substances at birth and, while he did not test positive for syphilis, the hospital treated him for it because of his high level of exposure. The same day, DCS petitioned the trial court to allow removal of Child from Parents' care because he was born exposed to drugs that Mother continued to use and because Father was unable to care for him due to Father's incarceration. The trial court granted that petition, and DCS placed Child in foster care, where he has remained ever since. On March 2, 2021, DCS filed its petition to declare Child a Child in Need of Services ("CHINS").
[¶4] On March 18, 2021, Parents admitted Child was a CHINS and the trial court adjudicated him accordingly. On April 22, 2021, the trial court held its dispositional hearing. On June 2, 2021, the trial court entered its dispositional order requiring Parents to, among other things, contact the DCS Family Case Manager ("FCM"); enroll in programs recommended by the FCM; obtain and maintain a legal source of income and suitable housing; refrain from use, manufacture, or sale of illegal substances; obey the law; complete substance abuse, psychological, and parenting assessments and follow all recommendations stemming therefrom; submit samples for random drug screens; and attend supervised visits with Child.
[¶5] As of the September 14, 2021, periodic case review, Mother had complied with the case plan. She had engaged in all services and "enhanced [her] ability to fulfill [her] parental obligations." (Id. at 53.) The trial court noted Mother had sought out additional services, completed a 30-day substance abuse program, and entered an outpatient recovery program. Mother was scheduled to start individual therapy and medication management. Because of this compliance, Mother had progressed into supervised in-home visits with Child three times a week. Father had not complied with the case plan because he was not able to engage in services during incarceration.
[¶6] Father was released from incarceration in January 2022 and began services. He completed parenting education classes, but he tested positive for illegal substances. Father consistently participated in random drug screens until February 2022. Around that time, Mother too had relapsed into substance abuse. Based thereon, Parents' visitation with Child regressed from supervised in-home visits to supervised visits outside the home. In "April or May" of 2022, Father went back to jail "for some charges . . . in Kentucky that he had." (Tr. Vol. II at 82.) As of a periodic case review in September 2022, Mother had continued for the most part to comply with the case plan. She refused to admit that she relapsed between January and April 2022, even though her drug screens during that time were positive for methamphetamine, amphetamine, and THC. At the time of the September 13, 2022, periodic case review hearing, Mother had submitted seven negative drug screens; however, she had not enrolled in a drug treatment program to maintain her sobriety. Mother participated in supervised visitation at maternal aunt's home three times a week.
[¶7] Father was again released from incarceration in August 2022. He reported he completed a 90-day drug treatment program, though he did not provide documentation thereof to DCS or the trial court. Father had not regularly submitted samples for drug screens and, on August 19, 2022, he tested positive for methamphetamine and amphetamine. As of September 2022, he had started to participate in supervised visitation.
[¶8] During supervised visitation on October 5, 2022, Father engaged in a verbal altercation with Child's maternal aunt. During the incident, Father made "homicidal threats" which caused safety concerns resulting in the cancellation of the remainder of the visit with Child. (Id. at 29.) The visitation supervisor called the police, who arrested Father. The State subsequently charged Father with Level 6 felony intimidation where the threat is to commit a forceable felony. On October 18, 2022, Father was charged with Level 6 felony possession of methamphetamine.
[¶9] On March 14, 2023, the trial court held a hearing to address DCS's request to change Child's permanency plan from reunification to adoption. During that hearing, DCS presented evidence that after the September 2022 periodic case review hearing, Mother relapsed on methamphetamine and amphetamine. However, closer to the time of the March 2023 hearing, Mother had engaged in substance abuse treatment and was currently living in a sober living community. At the time of the March hearing, Father had participated in two virtual visits with Child, but they were stopped because Father discussed "inappropriate matters" in front of Child. (Ex. Vol. III at 64.) The trial court changed Child's permanency plan from reunification to reunification with a concurrent plan of adoption.
[¶10] On March 22, 2023, DCS filed its petition to terminate Parents' parental rights to Child. During the first termination fact-finding hearing on June 20, 2023, Parents consented to adoption and the trial court continued the termination fact-finding in the matter "generally." (Tr. Vol. II at 16.) The trial court asked DCS to forward the consents to the adoptive parents' attorneys. On August 22, 2023, DCS filed a motion for hearing asking the trial court to hold a pretrial conference and additional fact-finding hearing because "the adoption consents only included Foster Mother's name and failed to include Foster Father as a person to adopt Child. Therefore the consents are not acceptable to proceed with adoption." (App. Vol. II at 85.)
[¶11] The trial court set an attorney conference on September 12, 2023. Parents were present. The trial court reset the fact-finding hearing for November 15, 2023. During the November 15, 2023, hearing, Father's counsel informed the trial court that Mother told him that Father was incarcerated in Louisville, Kentucky. He asked the trial court to continue the matter so Father could attend. DCS objected and noted that on October 30, 2023, DCS had told Father's counsel that Father was incarcerated in Louisville. DCS told the trial court that, since then, it had been trying to find a way to get Father transported over state lines to the hearing. The trial court denied Father's motion to continue noting, "there is no absolute right of a parent to be present at a termination hearing." (Tr. Vol. II at 21.) DCS presented evidence of Child's medical issues, Parents' noncompliance with services, and Parents' inability to fully address their substance abuse issues. On December 19, 2023, the trial court issued its order terminating Parents' parental rights to Child.
Discussion and Decision
[¶12] "The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children." In re A.L., 223 N.E.3d 1126, 1137 (Ind.Ct.App. 2023). However, a juvenile court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Id. The termination of parental rights is appropriate when parents are "unable or unwilling to meet their parental responsibilities[.]" Id. (quoting Bester v. Lake Cnty. Ofc. of Family &Children, 839 N.E.2d 143, 147 (Ind. 2005)). The termination of the parent-child relationship is "an 'extreme measure' and should only be utilized as a 'last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed.'" K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty. Office of Family &Children, 841 N.E.2d 615, 623 (Ind.Ct.App. 2006)).
[¶13] To terminate a parent-child relationship in Indiana, DCS must allege and prove:
(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 county office of family and children or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.Ind. Code § 31-35-2-4(b)(2). DCS must provide clear and convincing proof of these allegations at the termination hearing. In re T.W., 135 N.E.3d 607, 612 (Ind.Ct.App. 2019), trans. denied. "[I]f the State fails to prove any one of these statutory elements, then it is not entitled to a judgment terminating parental rights." Id. at 1261. Because parents have a constitutionally protected right to establish a home and raise their children, the State "must strictly comply" with the statutory requirements for terminating parental rights. In re Q.M., 974 N.E.2d 1021, 1024 (Ind.Ct.App. 2012) (quoting Platz v. Elkhart Cnty. Dep't of Pub. Welfare, 631 N.E.2d 16, 18 (Ind.Ct.App. 1994)). As our Indiana Supreme Court explained in In re V.A.:
In reviewing whether the termination of parental rights is appropriate "we do not reweigh the evidence or judge witness credibility." We consider only the evidence and reasonable inferences that are most favorable to the judgment and give "due regard" to the trial court's unique opportunity to judge the credibility of the witnesses. "We will set aside the trial court's judgment only if it is clearly erroneous."51 N.E.3d 1140, 1143 (Ind. 2016) (internal citations omitted).
1. Due Process Arguments
[¶14] Parents make individual arguments alleging violations of their due process rights. Mother contends her due process rights were violated when DCS did not change her visitation with Child to unsupervised. Father argues the trial court violated his due process rights when it denied his motion to continue the termination fact-finding hearing.
[¶15] Our standard of review regarding due process in termination proceedings is well-settled:
When the State seeks to terminate parental rights, it must do so in a manner that meets the requirements of due process. The nature of the process due in any proceeding is governed by a balance of three factors: "the private interests affected by the proceeding; the risk of error created by the State's chosen
procedure; and the countervailing governmental interest supporting use of the challenged procedure."In re T.W., 135 N.E.3d 607, 613 (Ind.Ct.App. 2019) (internal citations omitted), trans. denied.
1.1 Mother's Due Process Argument
[¶16] Mother argues DCS should have offered her the opportunity to progress beyond supervised visitation and its failure to do so violated her right to due process because DCS did not make reasonable efforts to reunify Mother with Child as required by Indiana Code section 31-34-21-5.5(b)(2). That statute states, in relevant part:
(b) Except as provided in section 5.6 of this chapter, the department shall make reasonable efforts to preserve and reunify families as follows:
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(2) If a child has been removed from the child's home, to make it possible for the child to return safely to the child's home as soon as possible.
Indiana Code section 31-34-21-5.6 states DCS is not required to offer services for reunification if certain circumstances exist. The parties agree that section does not apply in this case.
[¶17] Mother acknowledges she did not present this argument before the trial court and thus it is waived. See Matter of G.M., 71 N.E.3d 898, 904-5 (Ind.Ct.App. 2017) (issue not first presented before the trial court is waived from appellate consideration). Waiver notwithstanding, we address Mother's due process argument.
[¶18] In March 2021, at the beginning of the CHINS matter, Mother participated in supervised visits with Child. From March 2021 to September 2021, Mother consistently participated in services and thus, in September 2021, DCS progressed Mother's visits with Child to in-home supervised visits. However, in September 2022, Mother relapsed into drug use and provided several positive drug samples. Because of her relapse, Mother's visits were again fully supervised outside of her home. Mother's visits never again progressed to any level above fully-supervised-outside-the-home visits.
[¶19] Mother's inability to progress to in-home, unsupervised visits with Child was a result of Mother's relapse into drug use and continued positive drug screens. DCS's decision to modify Mother's visits with Child to outside the home following her relapse is a reasonable accommodation for DCS to make to protect the welfare of Child and the safety of the visitation supervisor. The "reasonable efforts to preserve and reunify families" that is required by Indiana Code section 31-34-21-5.5(b)(2) simply does not include an obligation to allow parents who have relapsed on illegal drugs to have unsupervised visitation with children. Because Mother's own behavior is the reason why she did not progress beyond supervised visitation, she cannot demonstrate she was denied due process.
1.2 Father's Due Process Argument
[¶20] Father argues the trial court violated his due process rights when it denied his motion to continue the fact-finding hearing. As noted above, we analyze arguments regarding due process by considering: (1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. In re T.W., 135 N.E.3d at 613.
[¶21] Father contends the trial court violated his right to due process when it denied his motion to continue because a continuance would have allowed him to attend the hearing and would not have harmed Child because Child was in a stable foster home where he was able to receive proper medical care. A parent has a due process right to raise their child as they see fit. In re D.H., 119 N.E.3d 578, 586 (Ind.Ct.App. 2019). In a termination proceeding, the government has an interest in protecting the welfare of the child. Termination of Parent-Child Relationship of I.B. v. Indiana Dep't of Child Servs., 933 N.E.2d 1264, 1270 (Ind. 2010). Delays in the adjudication of a termination of parental rights matter "impose[s] significant costs upon the function of government as well as an intangible costs to the life of the child involved." A.S. v. Indiana Dep't of Child Servs., 175 N.E.3d 318, 323 (Ind.Ct.App. 2021) (quoting In re B.J., 879 N.E.2d 7, 17 (Ind.Ct.App. 2008)).
[¶22] Here, at the time of the termination fact-finding hearing on November 15, 2023, Child was almost three years old and had been in foster care since he was released from the hospital, approximately a month after his birth. Father was incarcerated in Kentucky and his release date was unknown. Additionally, Father did not complete services, was incarcerated throughout the proceedings, and regularly tested positive for illegal drugs. Father did not progress beyond supervised visits with Child, and one of Father's visits ended early due to Father's violent outburst. Earlier in the case, Father also signed a consent for foster mother to adopt Child, which seemed to indicate he wished to terminate his parental rights to Child. Father was essentially no closer to reunifying with Child than he was at the beginning of the CHINS proceedings.
[¶23] A parent does not have a constitutional right to be physically present at a termination hearing. In re C.G., 954 N.E.2d 910, 921 (Ind. 2011). The risk that the continuance violated Father's due process rights is also less considering Father was represented by counsel, who cross examined witnesses and presented argument on Father's behalf. See, e.g., A.S., 175 N.E.3d at 325 (no due process violation when trial court denied mother's motion to continue because, despite mother's absence at the fact-finding hearing, she had counsel who could cross examine witnesses, present evidence, and make arguments). As we must balance the interest of a parent to be physically present at a termination hearing against our desire to not have children "languish, forgotten, in custodial limbo for long periods of time without permanency[.]" Baker v. Marion Cnty. OFC, 810 N.E.2d 1035, 1040 n.4 (Ind. 2004) (quoting In re Priser, No. 19861, 2004 WL 541124 at *6 (Ohio Ct. App. March 19, 2004)), we conclude Father's right to due process was not violated when the trial court denied his motion to continue the fact-finding hearing because the risk of error was minimal, if any. See, e.g., In re J.E., 45 N.E.3d 1243, 1247-8 (Ind.Ct.App. 2015) (father's due process rights not violated when trial court denied his motion to continue because father had counsel present and had not completed services).
2. Termination Order Challenges
[¶24] When, as here, a judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). First, we must determine whether the evidence supports the findings and then whether the findings support the trial court's judgment. Id. A finding is clearly erroneous when the record lacks evidence or reasonable inferences from the evidence to support it. Steele-Giri v. Steele, 51 N.E.3d 119, 125 (Ind. 2016). When reviewing the trial court's findings and conclusions we "shall not set aside the findings or judgment unless clearly erroneous and due regard shall be given to the opportunity of the trial judge to judge the credibility of witnesses." Ind. T.R. 52(A). "We accept unchallenged findings as true." Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind.Ct.App. 2019).
2.1 Challenged Findings
2.1.1 Challenged Findings Regarding Visitation with Child
[¶25] Mother challenges findings 11d, 11e, 14, 15, 21, and 22, which all pertain to her visitation with Child. Mother argues the evidence does not support these findings. The challenged findings are as follows:
11. [General statement about Mother's compliance with the requirements of the Dispositional Order]: * * * * * d. Mother has never progressed beyond monitored visitation with Child. Mother was recommended to go back to fully supervised visitation following a relapse.
e. Mother has never been recommended for unsupervised visitation, overnights, nor [sic] a trial home visit during the life of the CHINS case.
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14. [Melanie] Joubert [from Childplace, a supervised visitation service provider] felt that visits should continue, but should remain supervised as Mother was not making progress outside of visitation services that would indicate that she was in a place to undertake additional obligations. To quote Ms. Joubert, "if they aren't actively sober, they aren't actively safe."
15. Ms. Joubert also testified that, while she believed Child was safe during visits with her there, she did not believe Child would be safe if she was not present.
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21. Because Mother and Father have not engaged in any consistent visitation with Child and/or otherwise engaged in a healthy, appropriate, and meaningful parent-child relationship with Child during the entirety of DCS's involvement with Child, Mother and Father do not have a strong bond with Child. This finding is supported not only by the testimony of FCM [Abigail]
McDuffen but also by the testimony of CASA [Court Appointment Special Advocate] [Courtney] Roberts.
22. At the time of the Termination Hearing, Mother and Father had not visited with Child since their "goodbye visit" after the Adoption Consents were signed.
a. Furthermore, DCS did not have contact with Mother from June[] 2023 until September[] 2023.
b. The fact is salient for the Court as it evinces Mother's intent after signing the Adoption Consent. If Mother truly intended to restore and reunify her relationship with Child, she would have maintained contact with DCS and engaged in and utilized the services available to her.
Mother, however, did none of these things.(App. Vol. II at 8-15.) Mother contends these findings are not supported by the evidence, specifically that DCS did not demonstrate that her drug use was a threat to Child or affected her ability to attend visitation with Child.
[¶26] During the proceedings, Mother regularly tested positive for illegal substances, and Child's CHINS adjudication was due, in part, to Mother's drug use. As noted above, Mother did not ask for unsupervised visitation and she did not actively engage in the services ordered or request additional services to bring her toward the goal of unsupervised visitation. Further, visitation supervisor Melanie Joubert testified that during one visit with Child, Mother communicated to Joubert that Mother was "actively using" drugs and Mother seemed "more talkative to a degree that . . . was different . . than her regular appearance[.]" (Tr. Vol. II at 66-7.) Joubert expressed concern about Mother's inconsistent sobriety and engagement in services such as individual therapy, which was intended to ensure Mother's continued sobriety. Joubert also stated, regarding progression toward unsupervised visitation that she would recommend an increase in the number of hours Mother spent with Child, but she had concerns about Mother's housing and Mother's lack of engagement in services to ensure Child was safe in her care. Additionally, FCM Abigail McDuffen and Court Appointed Special Advocate Courtney Roberts both testified they did not recommend unsupervised visits because Mother had not made an effort to learn about Child's medical issues and how to treat them.
We therefore conclude there existed sufficient evidence to support the challenged findings regarding visitation with Child.
2.1.2 Challenged Findings Regarding Mother's Compliance with Services
[¶27] Mother challenges findings 10, 11i, and 11k - which pertain to her compliance with services - as unsupported by the evidence. The challenged findings are as follows:
10. Mother and Father fully failed to comply with the requirements set forth by the Court [in the Dispositional Order]. . ..
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11. [General statement about Mother's compliance with the requirements of the Dispositional Order]:
* * * * *
i. Mother had participated in several intensive outpatient treatment programs throughout the life of the CHINS case, but had failed to complete all programs or had failed to provide proof of her continued sobriety. As of the date of the Termination hearing, Mother had participated in five drug treatment programs in 2023.
* * * * *
k. Overall, Mother has failed to show compliance with the dispositional order and with the requirement that Mother has the present and consistent ability to provide Child with a safe, secure, and nurturing environment that is free from neglect and abuse.(App. Vol. II at 23-4.)
[¶28] Mother specifically takes issue with the portion of finding 10 that indicates she "fully failed" to comply with the requirements of the Dispositional Order. She asserts she was compliant with services "for significant periods of time" and "consistently submitted drug screens even if the drug screens showed positives during periods of relapse[.]" (Mother's Br. at 21.) At the time of the factfinding hearing, Mother was sober, was living with her mother, and was employed. She also asserts that she completed a drug treatment program while the termination proceedings were pending.
[¶29] However, DCS presented evidence that, while Mother was generally compliant with drug screens, there were many drug screens that indicated illegal substance use. At one point during the proceedings, Mother's visitation with Child was reduced from in-home supervised visitation to fully supervised visitation outside of her home. Additionally, Mother did not complete any services to address her substance abuse including home-based care services, substance abuse treatment, or individual therapy. FCM McDuffen told the trial court that because of her lack of participation in these services, Mother "was never able to adequately address the root cause of her substance abuse[.]" (Tr. Vol. II at 98.) While Mother reported to the trial court that she had completed substance abuse therapy, she did not provide documentation thereof. Child had never been in Mother's custody and Mother did not know how to treat Child's medical needs. Therefore, the evidence supported the trial court's findings, and Mother's argument is an invitation for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See In re V.A., 51 N.E.3d at 1143 (appellate court will not reweigh the evidence or judge the credibility of witnesses).
2.2 Challenged Conclusions
[¶30] In addition to the findings Mother challenged in the previous portions of this opinion, which we ultimately found supported by the evidence, the trial court made several other unchallenged findings that we keep in mind as we analyze Mother's arguments about whether the trial court's findings supported its conclusions:
11. [] [T]he Court makes the following specific findings regarding Mother's overall non-compliance with the specific provisions contained in the Dispositional Order:
a. Based on the evidence presented, Mother failed to maintain suitable and stable income during the pendency of the CHINS case and only recently obtained employment.
b. Mother did not complete individual therapy. Mother did not adequately address her mental health concerns or the underlying reason for her continued substance abuse.
c. Mother did not complete home-based casework services and was ultimately discharged from the service due to noncompliance.
* * * * *
f. Mother did not contribute to Child's needs for clothing, food, or supervision.
g. Mother was not involved in Child's medical or mental health services or needs. Mother attended only one doctor's appointment, despite being notified of every appointment by Child's foster parent. Further, Mother never had the care of Child in such a manner as would have required Mother to be responsible for providing Child any medication or other medical needs.
h. Mother has provided no physical or financial support for Child since Child's removal.
* * * * *
j. Mother has not been able to establish healthy boundaries with Father, despite admitting that her relationship with Father was a trigger for her substance abuse.
* * * * *
13. It is important to note that both Lauren Combs from Lifeline [a supervised visitation service provider] and Melanie Joubert from Childplace [a supervised visitation service provider] testified and acknowledge that, early in the CHINS case (2021-2022), that supervised visitations between Mother and Child were positive and went well. Mother handled redirection well and Mother and Child demonstrated a healthy attachment.
* * * * *
16. Mother testified that she has complied with the Dispositional Order 'the entire time.'
a. The Court is unsure how, in the face of all the evidence, that Mother would make such an assertion that lacks even a scintilla of credibility. As such, Mother's overall testimony is minimally credible.
17. That being said, the Court does acknowledge the work that Mother has put in to bettering herself. It appears that she has been employed for approximately six months, is living with a family member and has submitted numerous drug screens, all of which for the last approximately ten (10) months have been negative.
a. Sobriety is inherently more complicated than a series of negative drug screens. While those screens certainly
establish a discontinuation of substance use, the lack of completed services precludes the Court from being able to find that Mother's substance use has been remedied such that there is a reasonable probability it will not return.
This is evinced by the fact that Mother participated in, and yet did not complete, five (5) drug treatment programs this year alone.
18. At the previous setting of the Termination of Parental Rights Fact-Finding Hearing, held on June 20, 2023, both Mother and Father had executed and signed a Consent to Adoption, indicating that they each desired for the Foster Parent, Ashley Hamilton, to adopt Child.
19. At the time of the Termination of Parental Rights Fact Finding Hearing on November 15, 2023, Mother had attempted to withdraw her consent, but could not show that she was coerced or misled into signing the consent. It's noted that Mother stated it was her intention at the time of signing that Child be adopted by Foster Parent.
a. As the consent was only as to one Foster Parent and not both, and as Mother and Father refused to provide the subsequently [sic] additional consent, the partial consent was not sufficient and thus the Fact-Finding hearing was scheduled.
b. At this time, both Mother's and Father's consent for [Foster Mother] to adopt Child remains a valid consent. However, as [Foster Mother] is married, and her spouse is not included on the consent, [Foster Mother] was unable to proceed with an adoption.(App. Vol. II at 8-15) (formatting in original).
[¶31] Mother challenges conclusions 21, 22, 23, 24, and 25, which concern the trial court's conclusions that the conditions under which Child was removed from Mother's care would not be remedied and that the continuation of the MotherChild relationship was a threat to Child's well-being. Mother contends these conclusions are not supported by the trial court's findings because she had established sobriety at the time of the termination fact-finding hearing and thus "ha[d] remedied the reason for removal[.]" (Mother's Br. at 26.)
[¶32] Regarding whether the conditions requiring removal would not be remedied, the trial court noted Mother's sobriety in its conclusions but weighed that against her noncompliance with services to address her substance abuse disorder and other related issues. Mother reasserts her argument about her progress in services, but we have already rejected her challenges to those findings and determined the evidence supported those findings. The trial court's findings outline Mother's historical inability to provide a safe environment for Child and her continued inability to do so at the time of the fact-finding hearing. Based thereon, we hold the trial court's findings supported its conclusion that the conditions under which Child was removed from Mother's care would not be remedied. See, e.g., Matter of C.C., 153 N.E.3d 340, 349 (Ind.Ct.App. 2020) (father's noncompliance with requirements of dispositional order supported trial court's conclusion that conditions under which child was removed from his care would not be remedied), trans. denied.
Mother also argues the trial court's findings do not support its conclusion that the continuation of the Mother-Child relationship poses a threat to Child's well-being. As the relevant statute is written in the disjunctive, DCS is required to prove only one of the three parts of Indiana Code section 31-35-2-4(b)(2)(B). See, e.g., In re J.S., 183 N.E.3d 362, 369 (Ind.Ct.App. 2022) (Indiana Code section 31-35-2-4(b)(2)(A) is written in the disjunctive and, thus, DCS need prove only one of the enumerated elements therein), trans. denied. Accordingly, we need not address this argument to affirm the trial court's judgment.
Conclusion
[¶33] Mother's due process rights were not violated when DCS did not progress her to unsupervised visitation with Child because Mother did not ask for the progression or complete services required to decrease the amount of supervision provided during her visits with Child. Further, the trial court did not violate Father's due process rights when it denied Father's motion to continue because while the State and Father both had significant interest in the outcome of the proceedings, the risk of error in the trial court's denial of his motion to continue was minimal. Additionally, the trial court's findings challenged by Mother were supported by the evidence. Finally, the trial court's findings supported its conclusion that the conditions under which Child was removed from Mother's care would not be remedied. Accordingly, we affirm the involuntary termination of Parents' parental rights to Child.
[¶34] Affirmed.
Brown, J., and Pyle, J., concur.